Jhcurrie Supplementary Materials Torts CML 1207a 2014-15

TORTS
CML 1207A
SUPPLEMENTARY
MATERIALS
2014-2015
Professor John H. Currie

Professor Amy Salyzyn
TABLE OF CONTENTS
1. Allen M Linden, Lewis N Klar & Bruce Feldthusen, “Introduction:

The Nature and Function of Tort Law” in Canadian Tort Law:
Cases Notes and Materials, 14th ed (Markham, ON: Lexis-Nexis
Butterworths, 2014) at 1-47 ........................................................................................... 1-24
2. Larin v Goshen (1974), 56 DLR (3d) 719 (NSCA). ......................................................... 25
3. Non-Marine Underwriters, Lloyd's of London v Scalera, [2001] 1 SCR 551 .................. 28
4. Stoffman v Ontario Veterinary Association (1990), 73 OR (2d) 737 (Div Ct) ................. 43
5. Harris v Glaxosmithkline Inc, 2010 ONCA 872 ............................................................... 46
6. Clark v Canada (1994), 20 CCLT (2d) 241 (FCTD) ........................................................ 50
7. Jones v Tsige, 2012 ONCA 32 .......................................................................................... 54
8. Cant v Cant (1984), 49 OR (2d) 25 (Co Ct) ..................................................................... 63
9. Hudson’s Bay Co v White (1997), 32 CCLT (2d) 163 (Ont Ct Gen Div) ......................... 66
10. Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13 ............................... 73
11. Norberg v Wynrib, [1992] 2 SCR 226. ............................................................................. 80
12. Health Care Consent Act, 1996, SO 1990, c 2, Schedule A, ss 8-31................................ 86
13. Malette v Shulman (1990), 72 OR (2d) 417 (CA). ............................................................ 95
14. Brushett v Cowan (1990), 83 Nfld & PEIR 66 (Nfld CA). ............................................. 108
15. R v Asante-Mensah, [2003] 2 SCR 3 .............................................................................. 112
16. Citizen’s Arrest and Self-defence Act, SC 2012, c 9 ....................................................... 121
17. R v Feeney, [1997] 2 SCR 13 .......................................................................................... 124
18. Syl Apps Secure Treatment Centre v BD, [2007] 3 SCR 83 ........................................... 133
19. Stewart v Pettie, [1995] 1 SCR 131. ............................................................................... 146
20. Childs v Desormeaux, [2006] 1 SCR 643 ....................................................................... 151
-i-
21. Richardson v Sanayhie, 2010 ONSC 3000 (Sup Ct)...................................................... .161
22. Parental Responsibility Act, 2000, SO 2000, c 4 ............................................................ 164
23. Ryan v Victoria (City), [1999] 1 SCR 201 ...................................................................... 167
24. Clements v Clements, 2012 SCC 32 ............................................................................... 170
25. Ediger v Johnston, 2013 SCC 18 .................................................................................... 180
26. Janiak v Ippolito, [1985] 1 SCR 146 .............................................................................. 193
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Torts CML 1207A 2014-15 -1- Professors JH Currie and A Salyzyn
Torts CML 1207A 2014-15 - 10 - Professors JH Currie and A Salyzyn
Larin v Goshen
(1974), 56 DLR (3d) 719
Nova Scotia Supreme Court Appeal Division
[The defendant Larin (the appellant) was a referee and judge of a wrestling match held at the
Halifax Forum. He awarded the match to the unpopular side. In protest, the crowd threw chairs and
other objects toward the ring. Larin was struck and cut on the back of his head. He had to be
escorted back to the referees’ room by a police officer. The plaintiff Goshen (the respondent) was a
spectator at the match. He encountered the defendant as he was attempting to leave the forum. He
claimed that as he passed Larin, the latter pushed him, causing him to fall and fracture his wrist.]
The judgment of the Appeal Division was delivered by MacDONALD, J.A.

….
8 The action was originally framed in assault. The learned trial judge permitted counsel for the
respondent to amend the statement of claim to include an allegation that the injury complained of
was caused by the appellant who "directly either intentionally or negligently caused physical
contact with the person of the plaintiff without the plaintiff's consent". In other words, the action is
one of battery, being a trespass to the person….
12 The law in Canada at present is this: In an action for damages in trespass where the plaintiff
proves that he has been injured by the direct act of the defendant, the onus falls upon the defendant
to prove that his act was both unintentional and without negligence on his part, in order for him to
be entitled to a dismissal of the action.
13 The learned trial judge found that the appellant "actually did shove or push the defendant,
Jacob Goshen, to the floor ..." but that there was no malice and no intention on the part of the
appellant to wilfully injure the respondent, but that the injuries occurred through his negligence. As
to what he considered the negligence of the appellant to be, the learned trial judge said:-
"... it seems to me that even though the defendant did not intend to do any harm to
the plaintiff he did not take sufficient precaution to prevent harm befalling the
plaintiff through the defendant's actions. [Emphasis start]The defendant blindly
proceeded up the corridor with one arm in front of his face[Emphasis end] ...
(italics added)
...
There is considerable evidence to indicate that the defendant actually conducted
himself in a negligent manner by not taking care to avoid striking persons who
were lawfully on the premises and who were not in any way threatening him ..."
14 These extracts from the decision of the learned trial judge must be viewed in light of the
following remarks which he also made:-

"The crowd had become hostile and chairs and other objects were being thrown at
the referee and at the two wrestlers, Frederick Prosser, sometimes known as
Frederick Sweetan, and Eric Pomeroy. They were being escorted by three police
officers from the City of Halifax Police Force and two or three security guards
through the crowd, many of whom shouted and hurled insults at them as they
went by. The plaintiff emphatically testified that [*page72] he took no part in this
demonstration, and there is no evidence to indicate that he did.
Donald Larin, the defendant, and the referee in the bout was preceded by a police
officer, and on his left side he was being conducted and held by the left arm by
Sergeant John Mitchell of the Halifax Police Force. He held his right arm before
his eyes and in front of him in order, as he said, to protect his eyes and at the same
time to fend off any blows or objects that were hurled at him."
15 I accept, of course, the learned trial judge's finding of facts. I respectfully disagree, however,
as to the inference of negligence on the part of the appellant. This inference is a conclusion on the
trial judge's part from the facts by which, in my opinion, we are not bound….
19 As this Court said many years ago in McDougall v. MacDonald (1878), 12 N.S.R. 219,
negligence is a relative term, having a view to all the circumstances of the case. "In considering it
we are to be guided by the ordinary course of business and of human affairs, by what a reasonable
[*page73] man would do or refuse to do".
20 In French v. Condos (1929), 36 O.W.N. 117, Heeley, J., said:-
"In a sudden emergency one cannot be expected to act superhumanly, and if, only
by so acting, he can avoid danger or accident, he should not be held responsible."
21 In Wooldridge v. Sumner et al., [1962] 2 All E.R. 978 (C.A.), it was said that if, in the course
of a game or competition at a moment when he really has no time to think, a participant by mistake
takes a wrong measure, he is not to be held guilty of any negligence.
22 The foregoing authorities are cited to illustrate that negligence is a relative term, based on
what a reasonable man would do under the particular circumstances he was confronted with.
23 In the present case, it is clear that the appellant was in a position of some danger to his own
person, as a result of the crowd reaction to the decision in the final wrestling bout. The learned trial
judge found that the appellant did not intentionally push the respondent, but rather was negligent in
the manner he proceeded up the corridor, this, apparently, based on his finding that:
"The defendant blindly proceeded up the corridor with one arm in front of his face
..."
24 The learned trial judge, in what I take to be a finding of fact, said that the two wrestlers and
the referee (the appellant), were being escorted through the crowd by three police officers of the
Halifax City police force and two or three security guards. Later, he said, as quoted earlier herein,
that the appellant was "being conducted and held by the left arm by Sergeant John Mitchell of the
Halifax Police Force".
25 It is obvious to me that the appellant, at the material time, was in some position of danger; that
he was being conveyed through the crowd by Sergeant Mitchell and, indeed, a police officer in front
of the appellant and Sergeant Mitchell, according to the latter, was "helping to clear the path for us

through the crowd". Sergeant Mitchell said with respect to the two wrestlers and the appellant,
"Those were the three we guarded more so". Finally, Sergeant Mitchell testified that he had to push
[*page74] some of the crowd out of the way and, in cross-examination by counsel for the
respondent, said:-
"Q. Were you fending people off yourself?
A. Yes, I stuck my arm out to defend myself, pretty well much of the way."
26 At the time of the incident in question, the appellant had been injured and, according to
Sergeant Mitchell, appeared to be "a bit stunned". He was in protective police custody and was
being led to his dressing room. The crowd was so hostile and numerous that a policeman in front of
Sergeant Mitchell and the appellant had to clear a path for them through the crowd and Sergeant
Mitchell himself had to push or fend people off….
28 In the result, it is my opinion that the actions of the appellant did not amount to negligence
under the circumstances, from which it follows that he has discharged the onus of showing that the
respondent's injuries were not caused by his negligence.
29 The appeal should be allowed with costs, both here and in the Court below.
Appeal allowed.

Non-Marine Underwriters, Lloyd's of London v Scalera
[2001] 1 SCR 551
[In 1996, a plaintiff brought a civil action against five B.C. Transit bus drivers, including the
appellant, arising out of various alleged sexual assaults between 1988 and 1992. The allegations
included battery. The appellant sought to rely on a homeowner's insurance policy issued to him by
the respondent insurer. The policy provided coverage for "compensatory damage because of bodily
injury" arising from the insured's personal actions, excepting "bodily injury or property damage
caused by any intentional or criminal act". The British Columbia Supreme Court dismissed the
respondent's request for a declaration that the appellant was not covered under the policy. The
Court of Appeal allowed the respondent's appeal.]
The judgment of L'Heureux-Dubé, Gonthier, McLachlin and Binnie JJ. was delivered by
¶ 1 McLACHLIN J.:— I have read the reasons of Iacobucci J. and agree with the result he
reaches and with much of his reasoning. I would respectfully disagree, however, from the view that
in the tort of sexual battery, the onus rests on the plaintiff to prove that the defendant either knew
that she was not consenting or that a reasonable person in the defendant's position would have
known that she was not consenting.
¶2 As Goff L.J. (as he then was) stated in Collins v. Wilcock, [1984] 3 All E.R. 374 (Q.B.), at p.
378, "The fundamental principle, plain and incontestable, is that every person's body is
inviolate." The law of battery protects this inviolability, and it is for those who violate the physical
integrity of others to justify their actions. Accordingly, in my respectful view, the plaintiff who
alleges sexual battery makes her case by tendering evidence of force applied directly to
her. "Force", in the context of an allegation of sexual battery, simply refers to physical contact of a
sexual nature, and is neutral in the sense of not necessarily connoting a lack of consent. If the
defendant does not dispute that the contact took place, he bears the burden of proving that the
plaintiff consented or that a reasonable person in his position would have thought that she
consented. My reasons for so concluding are the following.
Analysis
The Canadian Law of Battery Places the Onus of Proving Consent on the Defendant
¶3 As Iacobucci J. states (at para. 103) "for traditional batteries, consent is conceived of as an
affirmative defence that must be raised by the defendant."
¶4 This Court has long affirmed this proposition. In Cook v. Lewis, [1951] S.C.R. 830, at p. 839,
Cartwright J. stated that "where a plaintiff is injured by force applied directly to him by the
defendant his case is made by proving this fact and the onus falls upon the defendant to prove 'that
such trespass was utterly without his fault'."
¶5 In Larin v. Goshen (1974), 56 D.L.R. (3d) 719 (N.S.C.A.), at 722, Macdonald J.A., citing
numerous authorities, stated: "The law in Canada at present is this: In an action for damages in

trespass where the plaintiff proves that he has been injured by the direct act of the defendant, the
onus falls upon the defendant to prove that his act was both unintentional and without negligence on
his part, in order for him to be entitled to a dismissal of the action."…. A number of academic
commentators also agree that the burden of proving consent lies on the defence….
¶6 This proposition holds for particular forms of battery like medical battery and sexual
battery. In Reibl v. Hughes, [1980] 2 S.C.R. 880, at p. 890, dealing with medical battery, Laskin
C.J. stated for the Court that:
[t]he tort [of battery] is an intentional one, consisting of an unprivileged and
unconsented to invasion of one's bodily security. True enough, it has some
advantages for a plaintiff over an action of negligence since it does not require proof
of causation and it casts upon the defendant the burden of proving consent to what
was done.
And in Norberg v. Wynrib, [1992] 2 S.C.R. 226, dealing with sexual battery, La Forest J., for the
plurality, stated, at p. 246, that "[a] battery is the intentional infliction of unlawful force on another
person. Consent, express or implied, is a defence to battery." None of the members of the Court
participating in the decision dissented from the view that the burden lies on the defendant to prove
consent.
¶7 The question, then, is whether we should in this case depart from the settled rule that requires
the plaintiff in a battery case to show only contact through a direct, intentional act of the defendant
and places the onus on the defendant of showing consent or lawful excuse, including actual or
constructive consent. For the reasons that follow, I am not convinced that we should alter the
established rule.
The Traditional Approach to Trespass is Justified as a Rights-Based Tort
¶8 The traditional rule, as noted, is that the plaintiff in an action for trespass to the person
(which includes battery) succeeds if she can prove direct interference with her person. Interference
is direct if it is the immediate consequence of a force set in motion by an act of the
defendant…. The burden is then on the defendant to allege and prove his defence. Consent is one
such defence.
¶9 Some critics have suggested that this rule should be altered. They suggest that tort must
always be fault-based. This means the plaintiff must prove fault as part of her case, by showing
either: (1) that the defendant intended to harm; (2) that the defendant failed to take reasonable care
or was "negligent"; or (3) that the tort is one of strict liability, i.e. legally presumed fault. On a
practical level, some, like F. L. Sharp, argue that the traditional approach confers an unfair
advantage on the plaintiff by easing her burden of proof: "Negligent Trespass in Canada: A
Persistent Source of Embarrassment" (1978), 1 Advocates' Q. 311, at pp. 312-14 and 326. It is
suggested that the law has moved in this direction in England: see Fowler v. Lanning, [1959] 1
Q.B. 426, approved in obiter in Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.). In the spirit of these
comments, my colleague Iacobucci J. proposes to alter the traditional rule, at least for sexual
battery, to require the plaintiff to prove fault, i.e. that the defendant either knew or ought to have
known that she was not consenting.

¶ 10 I do not agree with these criticisms of the traditional rule. In my view the law of battery is
based on protecting individuals' right to personal autonomy. To base the law of battery purely on
the principle of fault is to subordinate the plaintiff's right to protection from invasions of her
physical integrity to the defendant's freedom to act: see R. Sullivan, "Trespass to the Person in
Canada: A Defence of the Traditional Approach" (1987), 19 Ottawa L. Rev. 533, at p.
546. Although I do not necessarily accept all of Sullivan's contentions, I agree with her
characterization, at p. 551, of trespass to the person as a "violation of the plaintiff's right to
exclusive control of his person." This right is not absolute, because a defendant who violates this
right can nevertheless exonerate himself by proving a lack of intention or negligence: Cook, supra,
at p. 839, per Cartwright J. Although liability in battery is based not on the defendant's fault, but on
the violation of the plaintiff's right, the traditional approach will not impose liability without fault
because the violation of another person's right can be considered a form of fault. Basing the law of
battery on protecting the plaintiff's physical autonomy helps explain why the plaintiff in an action
for battery need prove only a direct interference, at which point the onus shifts to the person who is
alleged to have violated the right to justify the intrusion, excuse it or raise some other defence.
¶ 11 I agree with Sullivan's view that the traditional approach to trespass to the person remains
appropriate in Canada's modern context for a number of reasons. First, unlike negligence, where
the requirement of fault can be justified because the tortious sequence may be complicated, trespass
to the person is confined to direct interferences. Where the trespass causes actual injury to the
plaintiff, there is a direct connection between the defendant's action and the plaintiff's injury. As
Sullivan notes, at p. 562:
...where the injury complained of is an immediate consequence of the defendant's
act, it is intuitively sound to require compensation from the defendant unless he
offers a defence. In cases of direct interference, the relationship between the
defendant's will, his decision to act, and the injury to the plaintiff is both simple and
clear; there are no competing causal factors to obscure the defendant's role or dilute
his factual responsibility. The question of his moral and legal responsibility is thus
posed with unusual sharpness: as between the defendant who caused the injury and
the plaintiff who received it, other things being equal, who shall pay? ... Once the
plaintiff has shown that his right to personal autonomy has been violated by the
defendant, prima facie the defendant should pay.
¶ 12 Another factor supporting retaining the traditional approach to trespass and battery is that it
makes practical sense. Linden J. in Bell Canada v. COPE (Sarnia) Ltd. (1980), 11 C.C.L.T. 170
(Ont. H.C.), aff'd (1980), 31 O.R. (2d) 571 (C.A.), after noting the attacks on the Canadian law of
trespass, writes (at p. 180):
The trespass action still performs several functions, one of its most important being a
mechanism for shifting the onus of proof of whether there has been intentional or
negligent wrongdoing to the defendant, rather than requiring the plaintiff to prove
fault. The trespass action, though perhaps somewhat anomalous, may thus help to
smoke out evidence possessed by defendants, who cause direct injuries to plaintiffs,
which should assist Courts to obtain a fuller picture of the facts, a most worthwhile
objective. [Emphasis added.]

¶ 13 In cases of direct interference, the defendant is likely to know how and why the interference
occurred. I agree with Sullivan's suggestion, at p. 563, that "if the defendant is in a position to say
what happened, it is both sensible and just to give him an incentive to do so by putting the burden of
explanation on him".
¶ 14 Finally, I share Sullivan's concern with the fact that cases of direct interference with the
person tend to produce high "demoralization costs" (p. 563). Victims and those who identify with
them tend to feel resentment and insecurity if the wrong is not compensated. The close causal
relationship between the defendant's conduct and the violation of the plaintiff's bodily integrity, the
identification of the loss with the plaintiff's personality and freedom, the infliction of the loss in
isolated (as opposed to systemic) circumstances, and the perception of the defendant's conduct as
anti-social, all support the legal position that once the direct interference with the plaintiff's person
is shown, the defendant may fairly be called upon to explain his behaviour if indeed it was innocent.
¶ 15 These arguments persuade me that we should not lightly set aside the traditional rights-
based approach to the law of battery that is now the law of Canada. The tort of battery is aimed at
protecting the personal autonomy of the individual. Its purpose is to recognize the right of each
person to control his or her body and who touches it, and to permit damages where this right is
violated. The compensation stems from violation of the right to autonomy, not fault. When a
person interferes with the body of another, a prima facie case of violation of the plaintiff's autonomy
is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If
he can show that he acted with consent, the prima facie violation is negated and the plaintiff's claim
will fail. But it is not up to the plaintiff to prove that, in addition to directly interfering with her
body, the defendant was also at fault.
¶ 16 Having stated that we should not set aside the traditional approach to battery, I do not wish
to foreclose the possibility of future growth in this area of the law. References in definitions of the
tort of battery to "injury", or to contact being "unlawful" or "harmful or offensive" are different
ways of expressing the idea that not every physical contact constitutes a battery. In other words, the
tort requires contact "plus" something else. One view, as I discuss in the next section, is that the
"plus" refers merely to non-trivial contact. The caselaw to date tends to support this view, and
generally does not require actual physical or psychological injury…. In a future case, it may be
necessary to consider whether the "plus" required in addition to contact should be extended beyond
the minimum of non-trivial acts. However, the issue does not arise in this case, since the plaintiff
pleads physical and psychological damage. This is sufficient to bring the case within the traditional
view of battery, however the "plus" is defined. Therefore, for the purposes of this case, I proceed
upon the traditional view.
The Argument that the Contact Must Be "Harmful or Offensive" Does Not Support Placing the Onus
of Proving Non-Consent on the Plaintiff
¶ 17 The proposition that the law should require a plaintiff in an action for sexual battery to
prove that she did not consent, is supported, it is suggested, by a requirement that the contact
involved in battery must be harmful or offensive. The argument may be summarized as
follows. The plaintiff must prove all the essential elements of the tort of battery. One of these is
that the contact complained of was inherently harmful or offensive on an objective

standard. Consensual sexual contact is neither harmful nor offensive. Therefore the plaintiff, in
order to make out her case, must prove that she did not consent or that a reasonable person in the
defendant's position would not have thought she consented.
¶ 18 I do not dispute that a plaintiff generally must prove all elements of the tort she
alleges. Nor do I dispute that contact must be "harmful or offensive" to constitute
battery. However, I am not persuaded that plaintiffs in cases of sexual battery must prove that
contact was "non-consensual" in order to prove that it was "harmful or offensive." If one accepts
that the foundation of the tort of battery is a violation of personal autonomy, it follows that all
contact outside the exceptional category of contact that is generally accepted or expected in the
course of ordinary life, is prima facie offensive. Sexual contact does not fall into the category of
contact generally accepted or expected in the course of ordinary activities. Hence the plaintiff may
establish an action for sexual battery without negativing actual or constructive consent.
¶ 19 The idea that battery is confined to conduct that is "harmful or offensive" finds root in the
old cases involving trivial contacts. While the law of battery traditionally has held that the
defendant, not the plaintiff, bears the onus of proving consent, it has also held that not every trivial
contact suffices to establish battery. The classic example is being jostled in a crowd. A person who
enters a crowd cannot sue for being jostled; such contact is not "offensive". Two theories have been
put forward to explain this wrinkle on the general rule that all a plaintiff in a battery action must
prove is direct contact. The first is implied consent…. The second sees these cases as "a general
exception embracing all physical contact which is generally acceptable in the ordinary conduct of
everyday life": In re F., [1990] 2 A.C. 1 (H.L.), at p. 73, per Lord Goff.
¶ 20 Both these theories are consistent with the settled rule in Canadian law that a plaintiff in a
battery action need not prove the absence of consent. On the implied consent theory, even if the
plaintiff proves contact, the burden never shifts to the defendant to prove consent because consent is
implied by law. On the "exception" theory, the plaintiff cannot succeed merely by proving contact
if such contact falls within the exceptional category of conduct generally acceptable in ordinary
life. It is not necessary in this appeal to choose between these approaches, but in my view both
refer to the sort of everyday physical contact which one must be expected to tolerate, even if one
does not actually consent to it.
¶ 21 The question then becomes whether sexual battery falls into the extraordinary category of
cases where proving contact will not suffice to establish the plaintiff's case. Is sexual activity the
sort of activity where consent is implied? Clearly it is not. Alternatively, is it the sort of activity,
like being jostled in a crowd, that is generally accepted and expected as a normal part of
life? Again, I think not. The sort of conduct the cases envision is the inevitable contact that goes
with ordinary human activity, like brushing someone's hand in the course of exchanging a gift, a
gratuitous handshake, or being jostled in a crowd. Sexual contact does not fall into this category. It
is not the casual, accidental or inevitable consequence of general human activity and interaction. It
involves singling out another person's body in a deliberate, targeted act.
¶ 22 The assertion in some of the authorities that the contact must be harmful or offensive to
constitute battery (see e.g. La Forest J. in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, at p. 25), reflects the
need to exclude from battery the casual contacts inevitable in ordinary life. It does not, however,

require the conclusion that to make out a case of battery, a plaintiff must prove that the contact was
physically or psychologically injurious or morally offensive. The law of battery protects the
inviolability of the person. It starts from the presumption that apart from the usual and inevitable
contacts of ordinary life, each person is entitled not to be touched, and not to have her person
violated. The sexual touching itself, absent the defendant showing lawful excuse, constitutes the
violation and is "offensive". Sex is not an ordinary casual contact which must be accepted in
everyday life, nor is it the sort of contact to which consent can be implied. To require a plaintiff in
an action for sexual battery to prove that she did not consent or that a reasonable person in the
defendant's position would not have thought she consented, would be to deny the protection the law
has traditionally afforded to the inviolability of the body in the situation where it is perhaps most
needed and appropriate.
¶ 23 Only two cases, one in England concerning therapeutic administration of drugs and one in
New Zealand concerning sexual assault, are cited in favour of the proposition that the plaintiff must
show harm by proving a lack of consent as an element of the tort of battery: see Freeman v. Home
Office, [1983] 3 All E.R. 589 (Q.B.), aff'd [1984] 1 All E.R. 1036 (C.A.), H. v. R., [1996] 1
N.Z.L.R. 299 (H.C.). The proposition that the plaintiff must prove a lack of consent, on the basis
that she must prove that the impugned contact was harmful, is not supported by the law of battery,
which has traditionally been confined to acts which are inherently harmful, like hitting, shooting or
stabbing someone. Rather, its focus is on the protection of one's bodily integrity from any
unwanted contact. Many of the older cases concern contacts devoid of any real harm apart from the
violation of bodily integrity: Pursell v. Horn (1838), 8 AD. & E. 602, 112 E. R. 966 (pouring water
on a person), Green v. Goddard (1704), 2 Salkeld 641, 91 E. R. 540 (forcibly taking an object held
by another), Humphries v. Connor (1864), 17 Ir. Com. L. Rep. 1 (Q.B.) (taking flower worn by
plaintiff), and Forde v. Skinner (1830), 4 Car. & P. 239, 172 E. R. 687 (cutting a person's hair). In
more modern times, the same is true of medical battery cases. Like sexual acts, medical
interventions may incidentally produce physical and psychological harm which may go to
damages, but the basic "offence" or "harm" upon which the tort rests is the violation of the
plaintiff's bodily integrity. As I discuss below, Canadian courts do not require plaintiffs alleging
medical battery to prove that the defendant medical practitioner knew or ought to have known that
the plaintiff did not consent to the medical contact.
¶ 24 The practical counterpart of the argument that battery must involve inherently harmful or
offensive conduct in some larger sense is the suggestion that absent such a requirement, plaintiffs
will be able to unfairly drag defendants into court as a result of consensual sex, putting them to the
trouble and risk of proving that the plaintiff consented or that a reasonable person would have
concluded she consented. This point was not strongly argued, and with reason. Few plaintiffs to
consensual sex or in situations where consent is a reasonable inference from the circumstances, are
likely to sue if they are virtually certain to lose when the facts come out. Moreover, the rules of
court provide sanctions for vexatious litigants. There is no need to change the law of battery to
avoid vexatious claims.
¶ 25 Moreover, the prospect of plaintiffs suing and saying nothing about consent is more
theoretical than real. In fact, plaintiffs suing for sexual battery usually testify that they did not
consent to the sexual contact. Failure to do so, absent an explanation, makes it more likely the
defendant could win when he calls evidence of consent or reasonable appearance of consent. Even

if a plaintiff were to bring an action in sexual battery against the estate of a deceased defendant,
many provincial and territorial evidence acts would not allow the plaintiff to obtain a judgment
against the estate unless her evidence were corroborated by other material evidence…. At the same
time, as discussed more fully below, placing on the plaintiff the legal burden of always negativing
actual and constructive consent on pain of non-suit, may lead to injustice.
¶ 26 I conclude that the fact that the law of battery excludes trivial contact and requires contact
that is "harmful or offensive" does not require us to conclude that the plaintiff bears the burden of
proving that the defendant actually or constructively knew she did not consent to sexual contact.
There Is Nothing Particular About Sexual Assault that Makes it Necessary to Have a Special Rule
of Battery for Sexual Assaults for What the Plaintiff Must Prove
¶ 27 If there were something special about sexual battery that justified requiring the plaintiff to
prove that the defendant either knew she was not consenting or ought to have known that she was
not consenting, a case might be made for so doing. The result would be a special rule for sexual
battery inconsistent with the law of battery generally, and the creation of a new tort of sexual
battery. Thus far the courts have declined to do this. As Professor Feldthusen notes, "[t]here has
yet to be recognised a new nominate tort of sexual battery" (emphasis in original): "The Canadian
Experiment with the Civil Action for Sexual Battery", in N. J. Mullany, ed., Torts in the Nineties
(1997), 274, at p. 281. The sexual aspects of the claim go only to damages. However, as I stated
above, a new tort of sexual battery with different rules from ordinary battery could be recognized in
an appropriate case.
¶ 28 Before examining whether sexual battery is so different that special rules are required as to
what the plaintiff must show, it is important to take note of the danger of placing special, unjustified
burdens on victims of sexual encounters. At p. 282, Feldthusen notes that "in the criminal sphere,
enquiries into alleged consent have allowed the focus of the criminal trial to shift from the actions
of the defendant to the character of the complainant. The same potential exists in tort law"
(emphasis added). As he points out, "[t]here exist in our law deeply imbedded tendencies towards
victim blaming" (at p. 283). This is not to say that alleged victims of sexual assault could never be
singled out by placing special rules of proof on them that do not apply to other types of plaintiffs. It
is rather to say that we must guard against placing such burdens upon alleged victims of sexual
assault unless it can objectively be shown that it is necessary to do so in order to achieve justice.
¶ 29 To require plaintiffs in actions for sexual battery to prove that they did not consent and that
a reasonable person in the circumstances of the defendant would not have believed they consented,
is to place a burden on plaintiffs in actions for sexual battery that plaintiffs in other types of battery
do not bear. It is to do so, moreover, in the absence of any compelling reason. Indeed, there are
powerful reasons for applying the usual rules that require a plaintiff to prove only direct contact in
cases of sexual battery.
¶ 30 The first concern is that by requiring the plaintiff to prove more than the traditional battery
claim requires, we inappropriately shift the focus of the trial from the defendant's behaviour to the
plaintiff's character. Requiring the plaintiff to prove that a reasonable person in the position of the
defendant would have known that she was not consenting requires her to justify her actions. In

practical terms, she must prove that she made it clear through her conduct and words that she did
not consent to the sexual contact. Her conduct, not the defendant's, becomes the primary focus from
the outset. If she cannot prove these things, she will be non-suited and the defendant need never
give his side of the story.
¶ 31 The proposed shift to the plaintiff of the onus of disproving constructive consent runs the
risk of victim blaming, against which Feldthusen and others properly warn. It also runs the risk of
making it impossible for deserving victims of sexual battery to even get their foot in the litigation
door. Consider the case of the victim of sexual assault who cannot testify to the events because of
shock, loss of memory or inebriation. If she can prove that she was sexually assaulted and identify
the perpetrator through third-person evidence, should she be non-suited at the outset because she
cannot prove that her conduct in the circumstances would have led a reasonable person to conclude
she was not consenting? Is it not better in such cases that the defendant be called upon to give
evidence so the court can decide the case on a more complete picture of the facts? This is what the
law of battery would traditionally require. Why should we exempt the defendant because the battery
is a sexual battery?
¶ 32 The proposed shift of onus runs counter to Parliament's expressed view in the criminal
context. Although the aims of criminal law and the law of tort are not identical, it remains
significant that Parliament in s. 273.2(b) of the Criminal Code, R.S.C., 1985, c. C-46, stipulates that
those accused of sexual assault who seek to invoke the defence of honest but mistaken belief in
consent must have taken reasonable steps in the circumstances known to them at the time to
ascertain the complainant's consent. Parliament has thus moved to counteract the historic tendency
of criminal trials for sexual assault to focus unduly on the behaviour of the complainant, and to
redirect some of the focus to the defendant. The traditional tort of battery already provides this
focus in the civil domain. That focus should be retained in my view. To quote Sullivan, supra, at p.
563, "if the defendant is in a position to say what happened, it is both sensible and just to give him
an incentive to do so by putting the burden of explanation on him".
¶ 33 Requiring the plaintiff to disprove constructive consent seems all the more unfair because
the relevant facts lie first and foremost within the defendant's sphere of knowledge. He alone
knows whether he actually believed the plaintiff was consenting, and if he believed she was
consenting, he is in the best position to give evidence on the factors that led him to believe
that. The plaintiff, by contrast, is not in a position to produce evidence of what was in the
defendant's mind nor in as good a position to say what factors led him to that state of mind and
whether he acted reasonably. While the defendant's particular knowledge about his state of mind
regarding consent is not determinative of who bears the burden of proof regarding consent, it is one
of the principles of fairness and policy that are said to influence the allocation of this burden: see J.
Sopinka, S. N. Lederman, and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at
para. 3.70; McCormick on Evidence (5th ed. 1999), vol. 2, at para. 337.
¶ 34 I conclude that there is nothing about sexual battery that requires that the traditional rules of
onus governing battery actions be changed. On the contrary, placing the onus on the plaintiff of
disproving consent and constructive consent seems unfairly to impose special obligations on
plaintiffs who sue for sexual assault.

To Require the Plaintiff to Prove that the Defendant Knew or Ought to Have Known She Was Not
Consenting Presents the Dilemma of Either Changing the Law for Other Types of Battery or
Introducing an Inconsistency in the Law of Battery
¶ 35 To hold that battery must involve a contact that is inherently harmful or offensive has the
potential to change the law relating to other types of battery, like medical battery. Alternatively, if
it does not, it will introduce an inconsistency into the law of battery.
¶ 36 As discussed, Canadian courts have repeatedly held that for medical battery, the defendant
bears the onus of proving consent as a defence…. Like sexual contact, the act of medical
intervention is not inherently harmful or offensive, beyond its potential to violate bodily
integrity. If sexual battery requires the plaintiff to prove that the defendant knew or ought to have
known that the plaintiff did not consent, it is difficult to see why the same would not hold for
medical malpractice. Yet no one has suggested that the law of medical malpractice ought to be
changed to place an additional burden on the plaintiff of proving a culpable state of mind in the
defendant medical practitioner. The alternative, if the law of battery were changed in this regard for
sexual battery, would be inconsistency in the law of battery. Neither alternative is attractive. This
suggests a further reason for being wary of the proposition that battery requires proof by the
plaintiff of an inherently harmful or offensive act.
Requiring the Plaintiff to Prove that the Defendant Knew or Ought to Have Known that She Did Not
Consent is Neither Necessary nor Sufficient to Permit the Conclusion that the Insurers in this Case
Are Not Obligated to Defend the Defendant
¶ 37 The question at issue on this appeal is whether the insurer may avoid the obligation to
defend the defendant to the battery action under the policy exclusion for "any intentional . . . act". I
agree with Iacobucci J. that this clause must be interpreted as requiring an intent to injure. It follows
that for the tort of sexual battery to be excluded from policy coverage, it must always involve intent
to injure.
¶ 38 As I understand his reasons, Iacobucci J. finds this intent to injure is present on the basis of
legal inference, not as a matter of fact. The law presumes that in actions of battery for sexual
assault, the defendant intends to injure the plaintiff. Thus Iacobucci J. states "[g]iven ... actual or
constructive knowledge of non-consent, the law will not permit the appellant to claim that he did
not intend any harm"(para. 94 (emphasis added)). This legal inference is necessary because in cases
of constructive knowledge, the defendant may be held liable despite the fact that he had no actual
knowledge of lack of consent and hence no actual intent to harm the plaintiff…. In other words,
where there is an allegation of sexual battery, courts will conclude as a matter of legal inference that
the defendant intended harm for the purpose of construing exemptions of insurance coverage for
intentional injury.
¶ 39 This presumption of intent to harm does not depend on requiring the plaintiff to prove that
the defendant knew or ought to have known that the plaintiff was not consenting to the sexual
contact. Rather, the presumption flows from the allegation in the pleadings of battery of a sexual
nature…. The logic is simply that either the act must have been consensual or not consensual. If it
was not consensual, the policy does not apply because neither the insured nor the insurer

contemplated coverage for non-consensual sexual activities. If it was consensual, then there is no
battery and no claim for recovery. In either case, the policy does not apply….
¶ 40 … For these reasons I conclude that it is not necessary to place on the plaintiff the burden of
proving the defendant's knowledge or constructive knowledge of the plaintiff's non-consent.
¶ 41 If this reasoning is correct, then placing the non-traditional burden of disproving consent or
constructive consent on the plaintiff is neither a necessary nor a sufficient condition of concluding
that the policy does not apply in cases like this. Regardless of how one views the matter of onus, the
result will be the same.
[Notwithstanding their different approach to defining the tort of sexual battery, McLachlin J. went
on to agree with Iacobucci J., for other reasons, that the insurance policy in this case did not
provide coverage in respect of the alleged sexual batteries.]
The following are the reasons of Iacobucci, Major and Bastarache JJ. delivered by:
IACOBUCCI J.:—
[After holding, as a matter of insurance law, that the insurance policy's exclusion clause only
excluded acts intended to cause injury or harm, Iacobucci J. continued:]
….
Sexual Battery
Elements of the Tort of Sexual Battery
¶ 95 The tort of sexual battery is a relatively new one. As Professor Feldthusen points out in
"The Canadian Experiment with the Civil Action for Sexual Battery", in N. J. Mullany, ed., Torts in
the Nineties (1997), 274, at p. 274, this action is one that has appeared more frequently in the last
15 years. The sexual battery action signals the possibility of "dramatic changes to the law of
consent, to the action for breach of fiduciary duty, to the rules governing punitive damages, to the
rules of discovery and to the law of evidence" (p. 275). However, this appeal requires no such
changes. Contrary to McLachlin J.'s assertions, my approach entails nothing more than
understanding how traditional tort law applies in the context of sexual battery.
¶ 96 Sexual battery is a form of battery, the traditional test for which is relatively
straightforward. In M. (K.), supra, at p. 25, La Forest J. defined assault and battery as "causing
another person to apprehend the infliction of immediate harmful or offensive force on her person
coupled with the actual infliction of that harmful or offensive force." What is notably absent from
this definition is any intent to injure. Professor Klar, in his second edition of Tort Law (1996),
makes this point at p. 42:
For the tort of intentional battery, the defendant must have intended an offensive,
physical contact with the plaintiff. The defendant need not have intended to harm or
injure the plaintiff, although in most battery cases there is an intention to injure.

¶ 97 A. M. Linden, in Canadian Tort Law (6th ed. 1997), emphasizes this point at p. 43: "A
battery can be committed even though no harm or insult is intended by the contact. If the contact is
offensive to the recipient, even if a compliment was intended, it is tortious"….
¶ 98 Intentional battery generally requires only the intent to cause the physical consequences,
namely, an offensive touching. Klar, supra, makes this point at p. 30:
Technically, however, the concept of "intention" in the intentional torts does not
require defendants to know that their acts will result in harm to the plaintiffs.
Defendants must know only that their acts will result in certain consequences. It is
not necessary for defendants to realize that these intended consequences are in fact
an infringement of the legal rights of others. Intention, in other words, focusses on
physical consequences.
To similar effect is Linden, supra, at p. 33: "Conduct is intentional if the actor desires to produce the
consequences that follow from an act."
¶ 99 Moreover, if a tort is intended, it will not matter that the result was more harmful than the
actor should, or even could have foreseen. Linden, supra, at p. 45, quotes Borins Co. Ct. J. (as he
then was) in Bettel v. Yim (1978), 20 O.R. (2d) 617, at p. 628:
If physical contact was intended, the fact that its magnitude exceeded all reasonable
or intended expectations should make no difference. To hold otherwise ... would
unduly narrow recovery where one deliberately invades the bodily interests of
another with the result that the totally innocent plaintiff would be deprived of full
recovery for the totality of the injuries suffered as a result of the deliberate invasion
of his bodily interests.
¶ 100 The appellant's argument, in light of the foregoing, is quite simple. Battery requires only
intentional contact, not an intent to harm. Therefore, he could have had non-consensual sex with
the plaintiff, thus committing battery, while thinking consent was present and thus not intending any
harm. Any injuries could therefore have been unintentional, and the exclusion clause should not
apply because a claim within coverage could succeed.
¶ 101 The problem with the appellant's argument is that it fails to recognize the subtleties of
intentional tort, particularly as they apply to sexual battery. The law of intentional tort has
traditionally focussed on a different set of problems from those presented in cases of sexual battery.
In traditional battery, which is what the above-cited authorities were considering, what is usually at
stake is whether the defendant can be liable for unintended physical consequences of his or her
intentional actions, as in Bettel, supra. In these cases, the plaintiff's consent is not in question
because of the nature of the conduct. Punching, shooting, stabbing, or otherwise attempting to
injure another person is clearly offensive, and we would not expect someone to consent to it…. As
Borins Co. Ct. J. said in Bettel, supra, at p. 627, defendants in these cases have acted "with intent to
violate the interests of others"…. Consent simply is not an issue, and intent to injure is obvious.
¶ 102 Moreover, even in those cases where intent to harm is less obvious, lack of consent usually
is obvious. [There are] various instances where courts have debated the need to show intent to
harm. These cases typically involve childish pranks … or unintended consequences…. In all of

these situations, there is never any suggestion that the plaintiff consented to the battery; the focus
instead is on whether the appellant intended any harm, and these cases have generally decided that
no such intent is needed.
¶ 103 What is necessary, therefore, is to decide what role consent plays in an action for sexual
battery. It is clear that for traditional batteries, consent is conceived of as an affirmative defence
that must be raised by the defendant. As Cartwright J. said in Cook v. Lewis, [1951] S.C.R. 830, at
p. 839, "where a plaintiff is injured by force applied directly to him by the defendant his case is
made by proving this fact and the onus falls upon the defendant to prove 'that such trespass was
utterly without his fault'." Obviously, one way to make this showing, is by establishing that the
plaintiff consented to the touching. Therefore in Norberg v. Wynrib, [1992] 2 S.C.R. 226, La Forest
J. stated in obiter dictum that "[c]onsent, express or implied, is a defence to battery" (p. 246)…. If
consent is merely a defence to battery, then presumably the plaintiff could establish battery without
showing lack of consent. To paraphrase Cartwright J. in Cook, the plaintiff's case would be made
by showing the mere application of force by the defendant. As I understand it, this is the position
taken by McLachlin J. However, I have trouble concluding on these terms that the appellant
necessarily intended injury. Without a fault requirement of any kind, I cannot agree that the
exclusion clause would necessarily apply, and the respondent would therefore have a duty to
defend.
¶ 104 This doctrine is of course consistent with our basic notions of intentional tort. A person's
body is inviolable, and those who interfere with one's "intangible right to autonomy over one's own
body" will be held liable: Klar, supra, at p. 41. However, not all intentional touchings are
presumptively instances of battery. There are any number of contacts that are usually
consensual. For example, in Mandel v. The Permanent (1985), 7 O.A.C. 365 (Div. Ct.), at p. 370,
Henry J. noted that a man's placing his hand on the plaintiff's arm to guide her to the door was
"merely a polite gesture and an accepted usage in daily life in a civilized society, whether or not she
was consenting to it." A more obvious example is certain sports, where physical contact is expected
and even encouraged. What these examples show is that, in all cases, one must look to the context
to understand the role of consent.
¶ 105 While, for reasons already given, consent is not a well-developed concept in battery cases,
it is closely related to the more familiar requirement in tort law that a given contact be "harmful or
offensive" if it is to generate liability: see M. (K.), supra, at p. 25. Unlike more traditional batteries,
sexual activity by itself is not inherently harmful. Without denying the seriousness and frequency
of sexual assault, the simple fact is that sexual activity -- unlike being punched, stabbed, or shot -- is
usually consensual. It generally becomes harmful only if it is non-consensual, in the wider meaning
of that word. Without trying to catalogue the various ways that consent may be vitiated, I note that
Norberg, supra, established that simply because someone ostensibly consents to sexual activity
does not mean that their consent is valid….
¶ 106 That the "harmful or offensive" standard is a familiar one in tort law is shown by Wiffin v.
Kincard (1807), 2 Bos. & Pul. (N.R.) 471, 127 E.R. 713 (C.P.), and Coward v. Baddeley (1859), 4
H. & N. 478, 157 E.R. 927 (Ex.). In those cases, the courts determined that touching someone on
the shoulder to get their attention is not a battery, even if the recipient objected to the contact. As
Linden, supra, at p. 44, points out:

A line must be drawn between those contacts which are regarded as normal everyday
events, which people must put up with in a crowded world, and those which are
considered to be offensive and, therefore, unacceptable.
Klar, supra, at pp. 43-44, elaborates on this point:
The distinction between "hostile" and "friendly" contact seems to depend upon the
standard of generally acceptable conduct in society. The test is objective: what
would the reasonable person consider to be acceptable? Two recent English cases
demonstrate this proposition. In the first, Collins v. Wilcock, [1984] 1 W.L.R. 1172
(Q.B.), the act of a police officer in taking hold of someone's arm to restrain her from
walking off was deemed to constitute a battery. The test suggested by Goff L.J. was
this: "whether the physical conduct so persisted in has in the circumstances gone
beyond the generally acceptable standards of conduct." Ibid., at 1178.
In the second case, Wilson v. Pringle, [1986] 2 All E.R. 440 (C.A.), a schoolboy
playfully pulled the schoolbag off the plaintiff's shoulder, causing him injury. In
deciding whether this was a hostile touching and consequently a battery, Croom-
Johnson L.J. ... agreed that certain conduct must be judged as "acceptable in the
ordinary conduct of everyday life."
¶ 107 In England, courts have concluded that "[t]he absence of consent is so inherent in the
notion of a tortious invasion of interests in the person that the absence of consent must be
established by the plaintiff": M. R. Brazier, Street on Torts (10th ed. 1999), at p. 32. This issue was
decided by Freeman v. Home Office, [1983] 3 All E.R. 589 (Q.B.), aff'd [1984] 1 All E.R. 1036
(C.A.), where the court held that a prisoner suing for battery because of therapeutic drug injections
had the burden of proving non-consent. While it is not necessary in this appeal to decide whether
the burden of proving non-consent will always rest on the plaintiff, I believe that it should for
sexual battery. To repeat, sexual contact is only "harmful or offensive" when it is non-
consensual. To succeed in an action for intentional battery, one must prove both that (a) the
defendant intended to do the action; and (b) the reasonable person would have perceived that action
as being harmful or offensive. For sexual activity, an action is harmful or offensive if it is non-
consensual. Therefore in sexual battery, the trier of fact must be satisfied that the defendant
intended to engage in sexual activity which a reasonable person would have perceived to be non-
consensual.
¶ 108 The New Zealand High Court came to the same conclusion in H. v. R., [1996] 1 N.Z.L.R.
299, at p. 305:
In sexual abuse cases, a conceptual difficulty with the tort has been as to whether an
absence of consent is an element of the tort, or a defence. It seems to me that to the
extent that it has always been necessary for the plaintiff to prove a hostile intent to
ground this tort, the burden of demonstrating a lack of consent must be surmounted
by the plaintiff, of course on the civil standard. I[f] that is so, lack of consent has
always been, strictu sensu, an element of the offence.
….
¶ 110 I wish to emphasize that the foregoing should not be taken to endorse in any way the
inappropriate stereotype that women are to be presumed willing partners to sexual activity….
Nothing in these reasons should be read to the contrary. Putting the onus of proving lack of consent

on the plaintiff simply recognizes that in the sexual assault context, "non-consensual" is equivalent
to "harmful or offensive"; and the latter has always been an element of the plaintiff's case.
¶ 111 I would also emphasize that the plaintiff's burden in a civil action to prove non-consent is
much less onerous than the one faced by the prosecution in a criminal case. As Major J. noted in R.
v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 42, the mens rea of criminal sexual assault requires the
Crown to prove beyond a reasonable doubt that the accused was "knowing of or being reckless of or
wilfully blind to, a lack of consent on the part of the person touched." To prove the civil tort of
sexual battery, by contrast, one need only prove by a balance of probabilities that the defendant
knew or ought to have known that the plaintiff did not consent.
¶ 112 The onus of proving consent will be largely of theoretical importance. To meet her initial
burden, the plaintiff need simply allege that the sexual activity was non-consensual. The issue will
then be the same regardless of where the onus lies: on the balance of probabilities, should the
defendant have known that the plaintiff did not validly consent? The only time the plaintiff's
burden of pleading non-consent would be relevant is in those rare cases where, for whatever reason,
the defence chooses to present no evidence. In such a case, having the onus on the plaintiff ensures
that the defendant will only be liable if the plaintiff alleges, at a minimum, that the sexual activity
was non-consensual. While the practical difference is thus minimal, I believe the theoretical one is
important. Placing the onus of proving lack of consent on the plaintiff better reflects our traditional
notions of tort law, as adapted to the relatively new tort of sexual battery.
¶ 113 Having concluded that in the context of sexual battery the "harmful or offensive" element
is satisfied by showing lack of consent, I will now discuss whether the elements of a sexual battery
claim necessarily prove an intent to injure on the part of the defendant. If a sexual battery claim
requires proof of elements that also establish an intent to injure, then any successful claim would
necessarily be excluded under the policy and there can be no duty to defend such a claim.
….
¶ 115 This Court was presented with this issue, in a different context, in Norberg, supra. In that
case the Court split three ways on the appropriate characterization of the actions of a doctor who
convinced a drug-addicted patient to engage in sexual acts with him in return for pills to which she
was addicted. This issue is not before the Court in this appeal. However, I will assume all three
approaches set out in that case -- sexual battery, breach of duty, and breach of fiduciary duty -- are
possible.
¶ 116 Writing for himself, Gonthier and Cory JJ., La Forest J. concluded that Wynrib's conduct
amounted to sexual assault. Drawing an analogy to contract law, La Forest J. concluded that
consent may be vitiated where "there is an overwhelming imbalance in the power relationship
between the parties" (p. 248). If there was no valid consent, Wynrib was liable for battery.
¶ 117 What La Forest J.'s reasons left undecided is whether or not Wynrib had any intent to
harm, or indeed whether such intent is necessary for sexual battery. La Forest J. did not inquire into
subjective intent to harm, but instead focused on the presence or absence of valid consent. This
approach is consistent with the few reported lower court decisions addressing sexual assault. For

example, in M. (M.) v. K. (K.) (1989), 61 D.L.R. (4th) 392 (B.C.C.A.), the court concluded that
notwithstanding the fact that the victim initiated the sexual contact, there could be no valid consent
between a 41-year-old man and his 15- year-old foster daughter. Harder v. Brown (1989), 50
C.C.L.T. 85 (B.C.S.C.), and Lyth v. Dagg (1988), 46 C.C.L.T. 25 (B.C.S.C.), similarly declined to
consider intention to harm, instead finding that consent was vitiated by the extreme power
imbalances in the relationships.
¶ 118 One conclusion that could be drawn from these cases is that sexual battery requires no
intent to harm, only the absence of consent. If this is correct, the exclusion clause would not
necessarily apply to a sexual battery claim, and the respondent would have a duty to
defend. However, in my view this interpretation is not correct. Consent, linked as it is to the
"harmful or offensive" standard, as already discussed, is an objective standard. Sexual battery
requires an objective set of circumstances such that the defendant either knew or should have
known that there was no valid consent.
¶ 119 Leaving aside the physical injuries that can be inflicted by sexual assault, there can be no
question that it occasions untold injury to the victim's dignity, physical integrity, and psychological
well-being. The same facts that prove lack of consent will prove intent to injure; this follows
because if a reasonable person should have known there was no consent, the law will not excuse
that person's failure to perceive the lack of consent. On the other hand, a defendant will not be
liable for sexual assault if there was no way for him or her to know that the victim did not, or could
not, consent to sexual activity.
¶ 120 This Court has recognized the grave harm occasioned by sexual assault…. It can hardly
be disputed, I think, that any type of non-consensual sex clearly evinces an intent to harm the victim
thereof….
¶ 124 ….However, I agree that to prove sexual assault, a plaintiff must prove sufficient
culpability on the part of the defendant that an intent to harm follows. Accordingly, the exclusion
clause must apply, and the respondent has no duty to defend the plaintiff's claim of sexual
battery….
Conclusion
¶ 133 In summary, all of the plaintiff's claims against the appellant are covered by the exclusion
clause for injuries caused intentionally. To prove her case, the plaintiff will have to establish that
the appellant knew or should have known that the plaintiff did not validly consent to sexual
relations with him. In such a situation, the appellant will not be heard to complain that he did not
intend any harm. One who engages in objectively non-consensual sexual activity will be presumed
to have intended harm; whether or not he subjectively intended harm will not change the injurious
nature of his actions, and will not deny an insurer its bargained-for exclusion of intentionally
injurious activities….

Stoffman v Ontario Veterinary Association
(1990), 73 OR (2d) 737
High Court of Justice, Divisional Court
[Stoffman was a veterinary surgeon and a member of the defendant Veterinary Association. A
complaint was lodged with the Association against Stoffman after a dog left in his care was lost and
subsequently found dead. The Association decided not to institute a disciplinary hearing. The dog’s
owners filed a second complaint, whereupon the Executive Committee of the Association
investigated and decided to proceed with a disciplinary hearing. Stoffman was charged with
unprofessional conduct. He was found not guilty after a full disciplinary hearing. Stoffman then
sued the Association for damages for malicious prosecution. The trial judge dismissed the action,
holding that there were policy reasons for which such an action should not lie against a self-
regulating professional association for disciplinary proceedings against one of its members. On
appeal, McRae J., for the Court, first held that the Association did not benefit from an immunity
against such an action. His Lordship then proceeded to address the following question:]
….
(2) Is a malicious prosecution suit available where the original case was before a
disciplinary body and was not a criminal prosecution or one of the limited number of
civil actions from which such an action may spring?...
The second issue is somewhat more difficult. Traditionally, malicious prosecution actions may
only be taken in the case of a criminal prosecution or in a limited type of civil action. The only
decision directly on point as far as we are aware is McCarthy v. Barter (1895), 15 C.L.T. 198
(N.W.T. S.C.), a judgment of the Supreme Court for the Northern Alberta Judicial District. It
involved a complaint against an advocate of the Supreme Court of the Northwest Territories and an
application to strike him from the role as an advocate and to suspend and disqualify him from
practising. He was in fact suspended but successfully appealed. He then sued the complainant for
malicious prosecution. Justice Scott at p. 199 C.L.T. has this to say:
For the defendants it was contended that the action would not lie, because the
proceedings complained of were civil, and not criminal, proceedings; that the
only two exceptions to the rule that in all actions for malicious prosecution a
criminal prosecution must be shown, were the presentation of a petition in
bankruptcy or a petition for the winding-up of a public company; and that no
action will lie for conspiring to bring a civil action, or for bringing such an
action maliciously and without reasonable and probable cause.
Cotterell v. Jones, 16 C.B. 713, and Quartz Hill Gold Mining Co. v. Eyre, 11
Q.B.D. 674 were relied on.

Held, that no principle was to be deduced from either of these cases which
precluded the plaintiff from recovering in this action; it was at least fairly
open to argument that upon the principle laid down in the cases, the action
would lie; and there was no reason why a proceeding of the nature
complained of should not be made a third exception to the general rule,
especially where, as here, some other damage than costs ensued.
The Supreme Court in Nelles v. Ontario, supra, attempts to define and circumscribe the action of
malicious prosecution at pp. 192-93 S.C.R., p. 20 C.R.R., in this manner:
There are four necessary elements which must be proved for a plaintiff to
succeed in an action for malicious prosecution:
a) the proceedings must have been initiated by the defendant;

b) the proceedings must have terminated in favour of the plaintiff;
c) the absence of reasonable and probable cause;
d) malice, or a primary purpose other than that of carrying the law
into effect.
The present case on the face of the statement of claim brings itself within those perimeters.
The nature of a prosecution before a disciplinary panel in any event meets the general criteria for
such a case. That is, the test set out in Quartz Hill Consolidated Gold Mining Company v. Eyre
(1883), 11 Q.B.D. 674, 49 L.T. 249, 31 W.R. 668 (C.A.) at p. 689 Q.B.D., where it is said [quoting
from Holt C.J. in Savile v. Roberts (1698), 91 E.R. 1147, 1 Ld. Raym. 374 (K.B.)] that there were
there separate sorts of damage any of which would be sufficient to support an action for malicious
prosecution:
The damage to a man's fame, as if the matter whereof he is accused be

scandalous. And this was the ground of the case between Sir Andrew
Henley and Burstall: Raym. 180. ... (2) The second sort of damages, which
would support such an action, are such as are done to the person; as where
a man is put in danger to lose his life, or limb, or liberty, which has been
always allowed a good foundation of such an action. ... (3) The third sort of
damages, which will support such an action, is damage to a man's property,
as where he is forced to expend his money in necessary charges, to acquit
himself of the crime of which he is accused, which is the present charge.
That a man in such case is put to expenses, is without doubt, which is an
injury to his property, and if that injury is done to him maliciously, it is
reasonable that he shall have an action to repair himself.
The complaint against the plaintiff was that he demonstrated "other conduct or an act or omission
relevant to the practice of veterinary medicine that, having regard to the circumstances, would
reasonably be regarded as disgraceful, dishonourable, or unprofessional contrary to para. 53.50 of
the by-laws of the Ontario Veterinary Association", a complaint which tended to slander his
professional and personal character and would constitute the type of prosecution that could support
an action for malicious prosecution.

It is also a fact that the plaintiff was put to the expense, aggravation and disturbance of retaining
counsel and to defend himself against potentially having his professional career adversely affected.
While not a criminal prosecution, this type of action in our view, may be subject to an action or a
suit for malicious prosecution.
The appeal is allowed, the order dismissing the action is set aside.
Costs in the cause.
Appeal allowed.

Harris v Glaxosmithkline Inc
2010 ONCA 872
Moldaver J.A.:
Introduction
[1] The respondents (collectively “GSK”) are a group of related companies engaged in ... the
manufacture and sale of pharmaceuticals. One of GSK’s products is Paxil, a prescription drug used
to treat anxiety, depression and other disorders.
[2] The appellant, Ms. Harris, is a Paxil user. She is the representative plaintiff in a class action in
which she, and other Paxil users, contend that from 1999 to 2003, GSK misused a process under the
Patent Act, RSC 1985, c P-4, to delay the entry into the Canadian market of a less expensive generic
equivalent of Paxil. During that four-year period, Paxil users were required to buy Paxil at a “supra-
competitive” price for which they now seek to hold GSK accountable.
[3] In her claim on behalf of the class, the appellant alleges [that] GSK [committed the tort of]
abuse of process.
[4] In April 2010, GSK moved under ... the Rules of Civil Procedure for an order striking out the
appellant’s claim and dismissing the action. On April 22, 2010, Perell J., of the Superior Court of
Justice, granted GSK’s motion ... on the basis that the pleadings did not disclose a viable cause of
action against GSK....
[5] The appellant challenges that ruling on appeal. In essence, she submits that the motion judge ...
misdirected himself on the constituent elements of the tort of abuse of process....
[6] For reasons that follow, I am satisfied that the motion judge was correct in dismissing the action
against GSK.... Accordingly, I would dismiss the appeal....
The Regulatory Regime
[8] The marketing of drugs in Canada is governed by the Food and Drugs Act, RSC.1985, c F-27
(“FDA”) and the Patent Act…. Regulations made under that Act … provide that a drug cannot be
marketed in Canada unless and until the Minister of Health has issued a Notice of Compliance
(“NOC”) in respect of it.
[9] The Patent Act deals with intellectual property issues relating to patented drugs and their
subsequent generic copies. The Patented Medicines (Notice of Compliance) Regulations, SOR/93-
133 (“PM(NOC) Regulations”) … provide for a process whereby the interests of innovator
patentees are balanced against the competing interests of generic manufacturers.

[10] A subsequent manufacturer that wishes to market a generic version of a patented drug can
simply wait for the relevant patents to expire. Alternatively, s. 5(1) of the PM(NOC) Regulations
allows a manufacturer to serve a Notice of Allegation (“NOA”) on the patentee asserting that the
listed patents are invalid and/or will not be infringed by the proposed generic equivalent.
[11] Section 6(1) of the PM(NOC) Regulations provides that a patentee who receives a NOA may
challenge the allegations made by the generic manufacturer by applying for judicial review in the
Federal Court (a “NOC Proceeding”). In the NOC Proceeding, the patentee disputes the NOA and
asserts the validity and/or infringement of the patent in issue. The patentee is given an opportunity
to demonstrate that the allegations set forth in the NOA are “not justified”.
[12] Upon the commencement of a NOC Proceeding, s. 7(1)(e) of the PM(NOC) Regulations takes
effect and automatically enjoins the Minister from issuing a NOC to the generic drug manufacturer
for a period of up to 24 months from the date of the filing….
[15] [A] check on patentees who choose to institute NOC Proceedings is found in s. 8 of the
PM(NOC) Regulations. Under that provision, where a NOC Proceeding is withdrawn or
discontinued or is ultimately dismissed, the unsuccessful patentee is liable to the generic drug
manufacturer for any losses the generic manufacturer may have suffered due to its inability to
market its product during the stay period. The PM(NOC) Regulations do not, however, provide any
form of relief to other persons or entities, including consumers who may have been adversely
affected by a patentee’s choice to instigate a NOC Proceeding.
[16] In Apotex Inc v Merck & Co Inc, 2009 FCA 187, the Federal Court of Appeal commented on
the balance the PM(NOC) Regulations seek to achieve between the need for effective patent
protection and the timely entry of generic drugs into the marketplace. The automatic stay that arises
from the commencement of a NOC Proceeding is part of that balance. Its counterpart is the s. 8
obligation on the patentee to pay damages to a delayed generic entrant if the NOC Proceeding
fails….
[21] It is against this statutory and legal framework that the appellant’s claim against GSK must be
assessed.
The Failed NOC Proceedings
[22] Between 1999 and 2003, GSK filed six NOC Proceedings in the Federal Court against several
generic drug makers who sought to introduce a generic equivalent of Paxil into the Canadian
market. None of the NOC Proceedings were successful. However, by virtue of the automatic stays
that took effect upon their filing, GSK retained the exclusive right to market Paxil during the four
years in question.
[23] Referring to the NOC Proceedings as “objectively baseless”, the appellant claims that GSK
initiated them so that GSK could continue to charge consumers a “supra-competitive” price for
Paxil. In doing so, GSK used the court process for an improper collateral purpose and caused
damage to the class members – hence, the abuse of process claim….

Abuse of Process
[27] At para. 48 of his reasons, the motion judge defined the constituent elements of the tort of
abuse of process as follows:
The case law authorities establish that there are four constituent elements
to the tort of abuse of process: (1) the plaintiff is a party to a legal process
initiated by the defendant; (2) the legal process was initiated for the
predominant purpose of furthering some indirect, collateral and improper
objective; (3) the defendant took or made a definite act or threat in
furtherance of the improper purpose; and (4) some measure of special
damage has resulted….
[28] In my view, the motion judge correctly defined the elements of the tort of abuse of process.
His conclusion finds support in academic writings and an established line of authorities.
[29] The appellant referred to this court’s decision in Metrick v Deeb, [2003] OJ No 2221, leave to
appeal ref’d, [2003] SCCA No 378 as authority for the proposition that the tort of abuse of process
consists of only two elements: (1) using the legal process for an improper or collateral purpose; and
(2) the need for a definite act or threat in furtherance of the illegitimate purpose.
[30] Those two elements were taken from a passage in Fleming on Torts, 9th ed (LBC: Sydney,
1998), at p. 668, which the court referred to as “instructive”. In its brief endorsement, the court
directed its attention to the second of the two elements and found that it had not been made out on
the evidence.
[31] Metrick should not be taken as authority for the proposition that the tort of abuse of process
consists of only two elements. The court in that case was not called upon to consider the constituent
elements of the tort. It was simply responding to the particular issues raised in that case, one of
which related to the need for a definite act or threat in furtherance of the illegitimate purpose. In that
regard, the court found the following quote from Fleming instructive: “Some such overt conduct is
essential, because there is clearly no liability when the defendant merely employs regular legal
process to its proper conclusion, albeit with bad intentions” (emphasis added).
[32] As we shall see, that principle is applicable to the case at hand....
[33] Having concluded that the motion judge correctly identified the constituent elements of the
tort of abuse of process, the appellant’s claim necessarily founders on the first element. In short, she
was not a party to the NOC Proceedings....
[37] The motion judge also found that the third element of the tort of abuse of process was not
made out on the pleadings. At para. 72 of his reasons, he made the following observations, with
which I agree:
In the case at bar, based on the allegations pleaded in the statement of

claim, there is no overt act outside of the alleged abusive process. From a

reading of the statement of claim, all that can be said is that GSK made an
application under s. 6 of the NOC Regulations, which automatically
triggered the injunctive provisions of s. 7 of the regulation, which, in turn,
delayed the entry of generic drugs into the market but exposed GSK to a
claim under s. 8 of the regulation. Ms. Harris submits that the overt act
outside the NOC Proceeding was GSK’s act of continuing to sell Paxil at
supra-competitive prices, which is to say the act of selling at prices
untouched by competition. That overt act, however, is not outside the
NOC Proceedings. The act of bringing a NOC Proceeding is precisely the
act of prohibiting competition so that sales may continue untouched by
competition or at what Ms. Harris likes to call supra-competitive pricing.
[38] For these reasons, I am satisfied that the motion judge correctly determined that the tort of
abuse of process was not made out on the pleadings....
M. Rosenberg J.A.: I agree.
Karakatsanis J.A.: I agree.

Clark v Canada
(1994), 20 CCLT (2d) 241
Federal Court of Canada [Trial Division]
[The plaintiff was a former Royal Canadian Mounted Police ("RCMP") officer. She complained
that a series of acts of harassment had been directed against her by male colleagues. The evidence
disclosed that the plaintiff was repeatedly harassed by male constables, and that her RCMP
superiors had continually failed to come to her assistance. This had caused her severe stress and
depression and had ultimately driven her to resign from the force. She brought an action for
damages alleging wrongful dismissal in breach of her contract of employment, discrimination under
s. 15 of the Canadian Charter of Rights and Freedoms, negligence, and intentional infliction of
nervous shock. The following extracts from the judgment relate to the plaintiff’s claim in
intentional infliction of nervous shock.]
DUBÉ J.:--
....
(a) The parties’ positions:
The plaintiff's claim is two-fold: first, for the intentional infliction of nervous shock, and second for
"ordinary" negligence.... It is submitted that she was subject to a concrete attempt by the RCMP as
an entity to pressure her out of the force because she was expressing concerns over sexual
harassment at Red Deer City. The repeated and deliberate harassment at the hands of members of
the RCMP occurred within the employment context and led to psychological trauma....
The plaintiff identifies three classes of servants of the Crown as tortfeasors: individual constables,
who harassed the plaintiff because she was a woman; supervising officers, who knew or ought to
have known about the harassment and who chose to do nothing about it; supervising officers who,
by their own conduct, contributed to the harassment and assisted in driving the plaintiff from the
force. The plaintiff points to the extensive use made of 1004s, the threat to dismiss her, the refusal
to transfer her, and the laying of criminal charges relating to events occurring years previously and
known to her supervisors from the outset. She submits that the RCMP's right to control internal
conduct and discipline matters does not extend to the tortious conduct at issue here.
However, the defendant argues that the plaintiff neither pleaded nor proved a conspiracy to drive
the plaintiff from the force through infliction of nervous shock. All the evidence establishes is that
her supervisors did their duty in supervising her. The courts have no power to interfere with matters
of RCMP conduct and discipline, and therefore an action does not lies against an RCMP officer
even if the acts complained of are done maliciously and without reasonable cause.... Even if the
conduct complained of did occur, the only remedies available to the plaintiff are the internal
grievance process or the complaint mechanism under the CHRA.
Furthermore, the defendant argues that ... to be recoverable as a head of damage, nervous shock
must be a recognizable psychiatric condition attributable to the breach of an owed duty of care....

The plaintiff replies that the psychiatric condition of depression has been established....
(b) Analysis and findings:

....
(i) Intentional infliction of nervous shock
...[J]udicial recognition of this cause of action in tort originates with the Wilkinson v. Downton case,
in which a practical joker informed a woman her husband had been seriously injured, thereby
inducing a state of nervous shock and prolonged mental and physical suffering....
The Wilkinson principle has been adopted and applied in a number of Canadian cases....
[Those]cases involved single precipitating events. However, the recent [decision in Boothman v. R.,
[1993] 3 F.C. 381, 49 C.C.E.L. 109,] on which the plaintiff relies, concerned a course of harassing
and intimidating conduct over a seven month period which caused a severe mental breakdown that
was ongoing at the time of the trial seven years later. Noel J. found the defendant, who supervised
the plaintiff and who was her sole co-worker, had hired the plaintiff because of her emotional
vulnerability, exploited it in order to dominate her and, when that failed, drove her to break down
and quit. He concluded that the supervisor's authority had been exercised wrongfully to inflict
mental pain and suffering, to harass, humiliate, interfere with and assault the plaintiff. He found
wilful injuria of the Wilkinson type, combined with malicious purpose owing to knowledge of the
plaintiff's psychological fragility, and awarded damages for assault and intentional infliction of
nervous shock, in addition to exemplary damages.
Doctrinal authorities have summarized principles arising from the case law as follows. Fridman
[The Law of Torts in Canada, Vol. 1 (Toronto: Carswell, 1990) at p. 48] states that:
...[T]he defendant may bring about such [emotional or mental] harm without any
physical touching of the plaintiff, in the absence of any threat to the plaintiff's
physical safety, and without in any way infringing the plaintiff's freedom of
movement. It is essential that the defendant cause the harm by his own direct act.
Both extreme conduct and "objective and substantially harmful physical or psychopathological
consequences," rather than "mere anguish or fright," are required in order for a cause of action to
arise. As to the former, Linden notes that:
...The quality of outrageousness might . . . be based on the special position of

authority of the defendant. If a landlord, a police officer, or a school principal
uttered insults or threats to someone over whose future well-being they had some
control, these acts might be considered beyond the bounds of decency, and therefore
actionable.
Prosser adds that:
Another basis on which extreme outrage may be found lies in the defendant's
knowledge that the plaintiff is especially sensitive, susceptible and vulnerable to
injury through mental distress at the particular conduct....

The gist of the outrage is the defendant's knowledge of the plaintiff's vulnerability,
and where there is no such knowledge, conduct which is not otherwise sufficiently
extreme leads to no liability, even though the plaintiff may in fact suffer serious
injury because of it.
Fleming comments on the intentional element as follows:
Cases will be rare where nervous shock involving physical injury was fully intended.
More frequently, the defendant's aim would have been merely to frighten, terrify or
alarm his victim. But this is quite sufficient, provided his conduct was of a kind
reasonably capable of terrifying a normal person, or was known or ought to have
been known to the defendant to be likely to terrify the plaintiff for reasons special to
him. Such conduct could be described as reckless.
...
"Calculated" to cause harm has not been narrowly interpreted....
Irvine suggests that the interpretation of the term "calculated" that accords best with its use in
Wilkinson and the subsequent case law is:
...that nervous shock or suchlike harm was not even reasonably foreseeable, given
the defendant's limited knowledge of his victim's frailties; still less intended: but that
some unwelcome, uncomfortable or unpleasant emotional apprehension or sensation
... was foreseen and intended, even though that apprehension or emotional
discomfort so foreseen fell far short of the traumatic nervous shock in fact caused.
Irvine also cites case law to the effect that limitation of liability based on remoteness and lack of
foreseeability is inapplicable in the field of intentional torts....
The case at hand involves a situation unlike those occurring in any of the decisions reviewed. First,
several of the plaintiff's fellow members and superiors are involved, as opposed to a single
individual. A further distinction is that here the impugned behaviour involves both a course of
conduct on the part of a number of those individuals, as well as discrete acts or omissions on the
part of the same or other individuals, over a four year period. Given this unique set of
circumstances, I am nevertheless satisfied that the above authorities support the plaintiff's claim for
intentional infliction of nervous shock, for reasons already given.
I am satisfied that the evidence reviewed above establishes that the conduct directed toward the
plaintiff was extreme, and calculated "to produce some effect of the kind which was produced.” I
have also concluded that the plaintiff's mental and physical deterioration until her reassignment in
February 1987 meets the third criterion outlined in Rahemtulla, i.e., actual harm in the form of
illness. In my view the plaintiff's condition, attested to by both Drs. Cooper and Shih, was
analogous to those for which damages were awarded in that case and in the Timmermans case.
Further, the uncontradicted evidence concerning the plaintiff's condition in response to learning of
the criminal investigation establishes that it, too, was more than "mere anguish and fright." That

evidence is that the plaintiff's depression in Red Deer in 1986 was nothing compared to her
depression when the investigation began. I note that in Rahemtulla, McLachlin J. found the
plaintiff's response to the defendant's tortious conduct met the third criterion of actual harm despite
the absence of expert medical evidence. Noel J. noted in Boothman that the requirement that
recognizable psychiatric illness be proven appears to be most stringently observed in claims for
negligent infliction of nervous shock, which typically involve reactions to witnessing accidents or
their victims, and in which the ordinary rules of negligence apply.
....
Judgment is awarded to the plaintiff in the amount of $93,000, being $88,000 for special damages
for lost earnings, and $5,000 for general damages. She will also receive interest calculated pursuant
to the provisions of the Alberta Judgment Interest Act as well as her costs in this action.
Action allowed.

Jones v Tsige
2012 ONCA 32
Sharpe J.A.:
[1] Does Ontario law recognize a right to bring a civil action for damages for the invasion of
personal privacy?
....
[4] Jones and Tsige worked at different branches of the Bank of Montreal (“BMO”). Jones
maintains her primary bank account there. Jones and Tsige did not know or work with each other.
However, Tsige became involved in a relationship with Jones’ former husband. For about four
years, Tsige used her workplace computer to access Jones’ personal BMO bank accounts at least
174 times. The information displayed included transactions details, as well as personal information
such as date of birth, marital status and address. Tsige did not publish, distribute or record the
information in any way.
[5] Jones became suspicious that Tsige was accessing her account and complained to BMO. When
confronted by BMO, Tsige admitted that she had looked at Jones’ banking information, that she had
no legitimate reason for viewing the information and that she understood it was contrary to BMO’s
Code of Business Conduct and Ethics and her professional responsibility. Tsige explained then, and
maintains in this action, that she was involved in a financial dispute with the appellant’s former
husband and accessed the accounts to confirm whether he was paying child support to the appellant.
Jones does not accept that explanation as she says it is inconsistent with the timing and frequency of
Tsige’s snooping.
[6] Tsige has apologized for her actions and insists that she has ceased looking at Jones’ banking
information. Tsige is contrite and embarrassed by her actions. BMO disciplined Tsige by
suspending her for one week without pay and denying her a bonus.
[7] In her statement of claim, Jones asserts that her privacy interest in her confidential banking
information has been “irreversibly destroyed” and claims damages of $70,000 for invasion of
privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000....
1. Does Ontario law recognize a cause of action for invasion of privacy?
a) Introduction
[15] The question of whether the common law should recognize a cause of action in tort for
invasion of privacy has been debated for the past one hundred and twenty years. Aspects of privacy
have long been protected by causes of action such as breach of confidence, defamation, breach of
copyright, nuisance, and various property rights. Although the individual’s privacy interest is a
fundamental value underlying such claims, the recognition of a distinct right of action for breach of
privacy remains uncertain....

[16] Canadian, English and American courts and commentators almost invariably take the seminal
articles of S.D. Warren & L.D. Brandeis, “The Right to Privacy” (1890) 4 Harv. L. R. 193 and
William L. Prosser, “Privacy” (1960), 48 Cal. L. R. 383 as their starting point.
[17] Warren and Brandeis argued for the recognition of a right of privacy to meet the problems
posed by technological and social change that saw “instantaneous photographs” and “newspaper
enterprise” invade “the sacred precincts of private life” (at p. 195). They identified the “general
right of the individual to be let alone”, the right to “inviolate personality” (at p. 205), “the more
general right to the immunity of the person” and “the right to one’s personality” (at p. 207) as
fundamental values underlying such well-known causes of action as breach of confidence,
defamation and breach of copyright. They urged that open recognition of a right of privacy was
well-supported by these underlying legal values and required to meet the changing demands of the
society in which they lived.
[18] Professor Prosser’s article picked up the threads of the American jurisprudence that had
developed in the seventy years following the influential Warren and Brandeis article. Prosser argued
that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied
together by a common theme and name, but comprising different elements and protecting different
interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
[19] Most American jurisdictions now accept Prosser’s classification and it has also been adopted
by the Restatement (Second) of Torts (2010). The tort that is most relevant to this case, the tort of
“intrusion upon seclusion”, is described by the Restatement, at § 652B as:
One who intentionally intrudes, physically or otherwise, upon the
seclusion of another or his private affairs or concerns, is subject to liability
to the other for invasion of his privacy, if the invasion would be highly
offensive to a reasonable person.
[20] The comment section of the Restatement elaborates this proposition and explains that the tort
includes physical intrusions into private places as well as listening or looking, with or without
mechanical aids, into the plaintiff’s private affairs. Of particular relevance to this appeal, is the
observation that other non-physical forms of investigation or examination into private concerns may
be actionable. These include opening private and personal mail or examining a private bank
account, “even though there is no publication or other use of any kind” of the information obtained.
[21] If Jones has a right of action, it falls into Prosser’s first category of intrusion upon seclusion.
While I will make some reference to the fourth category of appropriation of the plaintiff’s name or
likeness in my discussion below, I will focus primarily on intrusion upon seclusion. I do so for two
reasons. First, I accept Prosser’s insight that the general right to privacy embraces four distinct torts,
each with its own considerations and rules, and that confusion may result from a failure to maintain
appropriate analytic distinctions between the categories. Second, as a court of law, we should
restrict ourselves to the particular issues posed by the facts of the case before us and not attempt to

decide more than is strictly necessary to decide that case. A cause of action of any wider breadth
would not only over-reach what is necessary to resolve this case, but could also amount to an
unmanageable legal proposition that would, as Prosser warned, breed confusion and uncertainty....
b) Case law
[23] Reflecting on Canadian jurisprudence, Allen M. Linden and Bruce Feldthusen, Canadian Tort
Law, 9th ed. (Toronto: LexisNexis, 2011) observed at p. 59, that “[w]e seem to be drifting closer to
the American model.”...
[24] My analysis of the case law supports the same conclusion: Ontario has already accepted the
existence of a tort claim for appropriation of personality and, at the very least, remains open to the
proposition that a tort action will lie for an intrusion upon seclusion....
c) Charter Jurisprudence
[39] Charter jurisprudence identifies privacy as being worthy of constitutional protection and
integral to an individual’s relationship with the rest of society and the state. The Supreme Court of
Canada has consistently interpreted the Charter’s s. 8 protection against unreasonable search and
seizure as protecting the underlying right to privacy....
[44] The Charter treatment of privacy accords with art. 12 of the Universal Declaration of Human
Rights..., which provides that “[n]o one shall be subjected to arbitrary interference with his privacy,
home or correspondence” and proclaims that “[e]veryone has the right to the protection of the law
against such interference or attacks”. Privacy is also recognized as a fundamental human right by
art. 17 of the International Covenant on Civil and Political Rights....
[45] While the Charter does not apply to common law disputes between private individuals, the
Supreme Court has acted on several occasions to develop the common law in a manner consistent
with Charter values....
[46] The explicit recognition of a right to privacy as underlying specific Charter rights and
freedoms, and the principle that the common law should be developed in a manner consistent with
Charter values, supports the recognition of a civil action for damages for intrusion upon the
plaintiff’s seclusion....
d) Legislation
[47] The federal and Ontario governments have enacted a complex legislative framework
addressing the issue of privacy. These include: Personal Information Protection and Electronic
Documents Act, 2000, SC 2000, c 5 (“PIPEDA”); Personal Health Information Protection Act,
2004, SO 2004, c 3; Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31;
Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56; Consumer
Reporting Act, RSO 1990, c C.33.

[48] Tsige argues that it is not open to this court to adapt the common law to deal with the invasion
of privacy on the ground that privacy is already the subject of legislation in Ontario and Canada that
reflects carefully considered economic and policy choices. It is submitted that expanding the reach
of the common law in this area would interfere with these carefully crafted regimes and that any
expansion of the law relating to the protection of privacy should be left to Parliament and the
legislature.
[49] I am not persuaded that the existing legislation provides a sound basis for this court to refuse to
recognize the emerging tort of intrusion upon seclusion and deny Jones a remedy. In my view, it
would take a strained interpretation to infer from these statutes a legislative intent to supplant or halt
the development of the common law in this area....
[50] PIPEDA is federal legislation dealing with “organizations” subject to federal jurisdiction and
does not speak to the existence of a civil cause of action in the province....
[51] The Ontario legislation essentially deals with freedom of information and the protection of
certain private information with respect to government and other public institutions. Like PIPEDA,
it has nothing to do with private rights of action between individuals.
[52] Four common law provinces currently have a statutorily created tort of invasion of privacy:
British Columbia, Privacy Act, RSBC 1996, c 373; Manitoba, Privacy Act, RSM 1987, c P125;
Saskatchewan, Privacy Act, RSS 1978, c P-24; and Newfoundland, Privacy Act, RSN 1990, c P-22.
All four Privacy Acts are similar. They establish a limited right of action, whereby liability will only
be found if the defendant acts wilfully (not a requirement in Manitoba) and without a claim of right.
Moreover, the nature and degree of the plaintiff’s privacy entitlement is circumscribed by what is
“reasonable in the circumstances”.
[53] Under Quebec law, the right to privacy is explicitly protected both by arts 3 and 35-37 of the
Civil Code of Quebec and by s 5 of the Charter of Human Rights and Freedoms, RSQ c C-12....
[54] Significantly, however, no provincial legislation provides a precise definition of what

constitutes an invasion of privacy. The courts in provinces with a statutory tort are left with more or
less the same task as courts in provinces without such statutes. The nature of these acts does not
indicate that we are faced with a situation where sensitive policy choices and decisions are best left
to the legislature. To the contrary, existing provincial legislation indicates that when the legislatures
have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to
define the contours of that right.
e) Other Jurisdictions
i) United States
[55] As already indicated, most American states have recognized a right of action for invasion of
privacy rights as defined by the four categories identified by Prosser and now adopted by the
Restatement.

[56] Generally speaking, to make out cause of action for intrusion upon seclusion, a plaintiff must
show:
1. an unauthorized intrusion;
2. that the intrusion was highly offensive to the reasonable person;
3. the matter intruded upon was private; and,
4. the intrusion caused anguish and suffering.
....
ii) Commonwealth Jurisdictions
[61] In England, privacy is expressly protected by art. 8 of the Convention for the Protection of
Human Rights and Fundamental Freedoms..., incorporated by the Human Rights Act 1998 (UK), c
42: “Everyone has the right to respect for his private and family life, his home and his
correspondence.” However, the House of Lords held in Wainwright v Home Office [2003] UKHL
53, [2003] 4 All ER 969 at para 31, that while privacy may be “a value which underlies the
existence of a rule of law (and may point the direction in which the law should develop)”, privacy is
not “a principle of law in itself” capable of supporting a private law right if action for damages. Yet
the next year, in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 467, the House of Lords
granted an injunction to restrain on grounds of breach of confidence publication of newspaper
stories and photographs of a supermodel leaving a drug addiction treatment facility. Lord Hoffman
held, in Campbell at para 51, that the tort of breach of confidence had evolved into a form of
privacy protection, described by the court as a tort of misuse of private information:
[T]he new approach takes a different view of the underlying value which
the law protects. Instead of the cause of action being based upon the duty
of good faith applicable to confidential personal information and trade
secrets alike, it focuses upon the protection of human autonomy and
dignity – the right to control the dissemination of information about one’s
private life and the right to the esteem and respect of people.
[62] The reformulated action for breach of confidence has been held to embrace damages claims to
protect privacy interests that would easily fall within the intrusion upon seclusion category: see
Mosely v News Group Newspapers Ltd [2008] EWHC 1777 (QB) at para 7: “[t]he law now affords
protection to information in respect of which there is a reasonable expectation of privacy, even in
circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty
of confidence.”
[63] In Lenah Game Meats Pty Ltd v Australian Broadcasting Corp, [2001] HCA 63, 185 ALR 1,
the High Court of Australia expressly left the door open to the recognition of a common law right to
privacy despite earlier authority to the contrary. This was applied in Grosse v Purvis, [2003] QDC
151, Aust Torts Reports 81-706, where the elements for the tort were found to be:
1. a willed act by the defendant;
2. which intrudes upon the privacy or seclusion of the plaintiff;
3. in a manner which would be considered highly offensive to a reasonable person of
ordinary sensibilities; and

4. which causes the plaintiff detriment in the form of mental, psychological or emotional
harm or distress or which prevents or hinders the plaintiff from doing an act which she is
lawfully entitled to do.
[64] In Hosking v Runting, [2004] NZCA 34, the New Zealand Court of Appeal recognized a
common law tort of breach of privacy that is separate and distinct from the tort of breach of
confidence. Although the court dismissed the claim on the merits, the majority judgment confirmed
the existence of a privacy tort in New Zealand dealing with wrongful publication of private facts to
address publicity that is (at para 26) “truly humiliating and distressful or otherwise harmful”. The
elements of the tort were described at para 109:
1. the existence of facts in respect of which there is a reasonable expectation of privacy; and
2. the publicity given to those private facts must be considered highly offensive to an
objective reasonable person.
2. Defining the tort of intrusion upon seclusion
a) Introduction
[65] In my view, it is appropriate for this court to confirm the existence of a right of action for
intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental
step that is consistent with the role of this court to develop the common law in a manner consistent
with the changing needs of society.
b) Rationale
[66] The case law, while certainly far from conclusive, supports the existence of such a cause of
action. Privacy has long been recognized as an important underlying and animating value of various
traditional causes of action to protect personal and territorial privacy. Charter jurisprudence
recognizes privacy as a fundamental value in our law and specifically identifies, as worthy of
protection, a right to informational privacy that is distinct from personal and territorial privacy. The
right to informational privacy closely tracks the same interest that would be protected by a cause of
action for intrusion upon seclusion. Many legal scholars and writers who have considered the issue
support recognition of a right of action for breach of privacy....
[67] For over one hundred years, technological change has motivated the legal protection of the
individual’s right to privacy. In modern times, the pace of technological change has accelerated
exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve
‘privacy’ which is being threatened by science and technology to the point of surrender”.... The
internet and digital technology have brought an enormous change in the way we communicate and
in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely
kept electronic data bases render our most personal financial information vulnerable. Sensitive
information as to our health is similarly available, as are records of the books we have borrowed or
bought, the movies we have rented or downloaded, where we have shopped, where we have
travelled, and the nature of our communications by cell phone, e-mail or text message.

[68] It is within the capacity of the common law to evolve to respond to the problem posed by the
routine collection and aggregation of highly personal information that is readily accessible in
electronic form. Technological change poses a novel threat to a right of privacy that has been
protected for hundreds of years by the common law under various guises and that, since 1982 and
the Charter, has been recognized as a right that is integral to our social and political order.
[69] Finally, and most importantly, we are presented in this case with facts that cry out for a
remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and
shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion
into her highly personal information. The discipline administered by Tsige’s employer was
governed by the principles of employment law and the interests of the employer and did not respond
directly to the wrong that had been done to Jones. In my view, the law of this province would be
sadly deficient if we were required to send Jones away without a legal remedy.
c) Elements
[70] I would essentially adopt as the elements of the action for intrusion upon seclusion the
Restatement (Second) of Torts (2010) formulation....
[71] The key features of this cause of action are, first, that the defendant’s conduct must be
intentional, within which I would include reckless; second that the defendant must have invaded,
without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable
person would regard the invasion as highly offensive causing distress, humiliation or anguish.
However, proof of harm to a recognized economic interest is not an element of the cause of action. I
return below to the question of damages, but state here that I believe it important to emphasize that
given the intangible nature of the interest protected, damages for intrusion upon seclusion will
ordinarily be measured by a modest conventional sum.
d) Limitations
[72] These elements make it clear that recognizing this cause of action will not open the floodgates.
A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of
personal privacy. Claims from individuals who are sensitive or unusually concerned about their
privacy are excluded: it is only intrusions into matters such as one’s financial or health records,
sexual practices and orientation, employment, diary or private correspondence that, viewed
objectively on the reasonable person standard, can be described as highly offensive.
[73] Finally, claims for the protection of privacy may give rise to competing claims. Foremost are
claims for the protection of freedom of expression and freedom of the press. As we are not
confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to
say, no right to privacy can be absolute and many claims for the protection of privacy will have to
be reconciled with, and even yield to, such competing claims....

3. Damages
[74] As I have indicated, proof of actual loss is not an element of the cause of action for intrusion
upon seclusion. However, the question necessarily arises: what is the appropriate approach to
damages in cases, like the present, where the plaintiff has suffered no pecuniary loss?
[75] Where the plaintiff has suffered no provable pecuniary loss, the damages fall into the category
of what Professor Stephen M. Waddams … describes as “symbolic” and others have labeled as
“moral” damages…. They are awarded “to vindicate rights or symbolize recognition of their
infringement”…. I agree with Prof. Waddams’ observation that a conventional range of damages is
necessary to maintain “consistency, predictability and fairness between one plaintiff and another.”
[76] Guidance in determining an appropriate range of damages can be gleaned from existing case
law from Ontario as well as from the provinces where there is a statutory cause of action....
[87] In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no
pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix
the range at up to $20,000. The factors identified in the Manitoba Privacy Act … have also emerged
from the decided cases and provide a useful guide to assist in determining where in the range the
case falls:
1. the nature, incidence and occasion of the defendant’s wrongful act;
2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial
position;
3. any relationship, whether domestic or otherwise, between the parties;
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the
wrong; and
5. the conduct of the parties, both before and after the wrong, including any apology or offer
of amends made by the defendant.
[88] I would neither exclude nor encourage awards of aggravated and punitive damages. I would
not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies.
However, I would not encourage such awards as, in my view, predictability and consistency are
paramount values in an area where symbolic or moral damages are awarded and absent truly
exceptional circumstances, plaintiffs should be held to the range I have identified.
4. Application to this case
[89] It is my view that in this case, Tsige committed the tort of intrusion upon seclusion when she
repeatedly examined the private bank records of Jones. These acts satisfy the elements laid out
above: the intrusion was intentional, it amounted to an unlawful invasion of Jones’ private affairs, it
would be viewed as highly offensive to the reasonable person and caused distress, humiliation or
anguish.
[90] In determining damages, there are a number of factors to consider. Favouring a higher award is
the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of
domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably

very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no
public embarrassment or harm to her health, welfare, social, business or financial position and Tsige
has apologized for her conduct and made genuine attempts to make amends. On balance, I would
place this case at the mid-point of the range I have identified and award damages in the amount of
$10,000. Tsige’s intrusion upon Jones’ seclusion, this case does not, in my view, exhibit any
exceptional quality calling for an award of aggravated or punitive damages....
W.K. Winkler C.J.O.: I agree.
J.D. Cunningham A.C.J.: I agree.

Cant v Cant
(1984), 49 OR (2d) 25
Ontario County Court
SALHANY CO. CT. J.:-- ….

The facts leading up to this claim are as follows: Mr. and Mrs. Cant were married on June 9,
1979, and separated on May 15, 1981. An only child of the marriage, Jonathan Cant, was born on
November 11, 1979. Following the separation, the plaintiff filed a petition for divorce on the
grounds of mental and physical cruelty and was awarded interim custody of Jonathan on July 24,
1981, by Master Cork.
Some time prior to the week of February 14, 1982, the defendant had Jonathan for his access
period and was required to return him on that day, a Sunday. When the defendant did not return
Jonathan, the plaintiff hired a private investigator who made efforts to locate him. Some attempt
was made to locate him in the State of Indiana in 1982 without success. Eventually in November of
1983, the plaintiff received word that the defendant and Jonathan had been located in Australia
where the defendant's family reside.
In the mean time on Monday, February 15, 1982, O'Leary J. gave an order that the defendant
deliver up Jonathan to the plaintiff and directed the sheriff or any law enforcement officer in
Ontario to search for and recover the child. Armed with that order, the plaintiff travelled to
Australia accompanied by Inspector Lou Lawson of the Peel Regional Police. There, an ex parte
order was obtained from a court in Melbourne ordering the federal police of Australia to search for
and recover Jonathan. The police were able to locate and recover him in Townsville, Queensland,
but when they attempted to leave Australia, she was served with an order restraining Jonathan from
leaving Australia until the matter was resolved by an Australian court. At that time, the plaintiff was
forced to surrender her passport.
Eventually, after a full custody hearing, the plaintiff was granted custody and returned to Canada
with Jonathan on February 18, 1984.
Although the plaintiff claimed damages for mental stress and suffering, Ms. Seppi indicated that
she was not pursuing that claim. The plaintiff 's sole claim is for expenses incurred of $32,182.34 in
her search for and recovery of Jonathan. These are broken down as follows:
1. Airline expenses -- $15,756.15. These include the costs of the plaintiff, Inspector Lawson
and Norman Matthews, an investigator, to Australia and return. It also includes the cost of
flying witnesses and counsel from Melbourne to Queensland and return as well as
Inspector Lawson and Norman Matthews.
2. Hotel accommodations and car rentals in Australia -- $3,132.61 for herself and the various
witnesses described in claim 1.
3. Cleaning and cab charges in Australia -- $259.20.

4. Miscellaneous expenses, groceries, drugstore items, clothing items, photographs, etc., while
in Australia -- $525.59.
5. Telephone calls to and from Australia -- $1,627.
6. Investigation fees -- $8,573.36.
7. Trip to Indiana -- August, 1982 -- to locate Jonathan -- $855.
8. Legal expenses in Indiana -- $458.07.
9. Advertising in U.S. papers and journals -- $110.
10. Telephone expenses to Australia -- $640.36.
11. Action re Stanton -- matrimonial home -- $200.
12. Psychic expenses -- $45.

With the exception of the last two items which I disallow, I have no hesitation in finding that the
sum of $31,937.34 were expenses properly incurred by the plaintiff in attempting to recover
Jonathan.
…. What is being asserted here is that the plaintiff 's legal rights have been violated and are
compensable in damages. She relied upon the decision of Dubin J.A. in McKenzie et al. v. Peel
County Board of Education (1974), 5 O.R. (2d) 549, 51 D.L.R. (3d) 33, and upon the following
passage from Clerk and Lindsell on Torts, 11th ed. (1954), at p. 12, quoted in that decision [at p.
561 O.R., p. 45 D.L.R.]:
Tort and the Violation of a Legal Right. Before passing to the classification of torts
as a breach of right it should be pointed out that it has been laid down frequently
that all torts must consist of a violation of a right in the plaintiff. This is, perhaps, a
self-evident proposition since in private law 'wrong' must be correlative of 'right',
but its application has led to some confusion of thought and not a little difficulty in
application. This difficulty arises from the classic cases in which the principle has
been invoked and can be illustrated simply from the following statement: 'It is
essential to an action in tort that the act complained of should under the
circumstances be legally wrongful as regards the party complaining; that is, it must
prejudicially affect him in some legal right; merely that it will, however directly,
do a man harm in his interests, is not enough.'
Simply put, Ms. Seppi's argument was this. The plaintiff had the legal right to custody of
Jonathan granted to her by the order of Master Cork and later by O'Leary J. The defendant violated
that legal right when he intentionally took Jonathan to Australia and refused to return him to the
plaintiff. Indeed, not only did he violate her legal right to custody, he committed a crime contrary to
s. 250.1 of the Criminal Code. These two factors, that is, the order of two judicial officers of the
Supreme Court and the violation of the Criminal Code determine the standard of conduct
appropriate to the occasion with the result that (to quote from her memorandum of argument) "an

unexcused deviation is negligence per se: See Fleming, The Law of Torts, 4th ed. pp. 130-132;
Prosser, Torts, 4th ed. at pp. 190-192".
I have no quarrel with the submission that a court is entitled to consider statutory or penal
legislation in determining whether certain conduct of a defendant has deviated from that standard
and is therefore negligent. However, I am loath to characterize Mr. Cant's conduct as one of
negligence. It is more correct to describe it as deliberate or intentional. He has deliberately
attempted to flout two orders made by the Supreme Court of Ontario. Although the forms of action
have long been abolished, substantive tort law has not, regrettably, been completely emancipated. It
still continues to develop from its initial source, trespass and, its later offspring, case or negligence.
Therefore, in my opinion, whether Mrs. Cant is entitled to compensation will depend upon whether
her claim is one recognized as a development of trespass.
I am of the view that such a claim can be supported where it is established that the defendant
wilfully did an act calculated to cause harm or loss to the plaintiff. Such a claim has been
recognized in England at least since the end of the last century where that wilful act caused the
plaintiff mental distress.
In Wilkinson v. Downton, [1897] 2 Q.B. 57, the defendant was a practical joker who told the
plaintiff that her husband had been severely injured in an accident. This caused the plaintiff to suffer
nervous shock resulting in serious physical illness with permanent consequences. Wright J. held that
if a person wilfully does an act calculated to cause harm to another and thereby infringes his legal
right to personal safety resulting in mental distress, the plaintiff has a cause of action in the absence
of lawful justification for the act [p. 59]: "This wilful injuria is in law malicious although no
malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the
defendant." That principle has been recognized in Canada in Bielitski v. Obadiak (1921), 61 D.L.R.
494, [1921] 3 W.W.R. 229, 15 S.L.R. 153. In that case, a practical joker spread a rumour that the
plaintiff 's son had hanged himself on a telephone pole. This caused the plaintiff to suffer
emotionally for some time. Recovery was granted on the basis that "the defendant has ... wilfully
done an act calculated to cause physical harm to the plaintiff--that is to say, to infringe her legal
right to personal safety" [p. 496, quoting from Wilkinson v. Downton, supra, at pp. 58-9]: see also
Jennett v. Federal Ins. Co. (1976), 13 O.R. (2d) 617, 72 D.L.R. (3d) 20, [1976] I.L.R. para. 1-782.
I recognize that the issue here is not one of physical or emotional harm but, rather, economic loss.
Nevertheless, I think that the principle is equally applicable….
Judgment accordingly.

Hudson's Bay Co. v White
(1997), 32 CCLT (2d) 163 (Ont Gen Div)
[White shoplifted gloves from the Bay store valued at approximately $200. No criminal charges
were laid as a result of the incident. The Bay was claiming the per arrest cost of surveillance,
investigation and apprehension of shoplifters, together with punitive damages and a permanent
injunction enjoining the defendant from entering any retail outlet owned or operated by the Bay.]
LEDERMAN J.:--
Crime and Tort
There would seem to be little doubt that a crime may also constitute a tort. Halsbury's Laws of
England, 4th ed. Vol. 45 (London: Butterworths, 1985) at para. 1203 explains the relationship
between crime and tort, as follows:
A crime is an unlawful act or default which is an offence against the public, and
renders the person who is guilty of the act or default liable to legal punishment. The
same act or omission may be both a crime and a tort, for the duty giving rise to a
potential claim for damages against the tortfeasor may also be a duty imposed for the
benefit of the public, a breach of which gives rise to a criminal offence.
Accordingly, there does not appear to be any dispute that the wrongful taking of an individual's
property could give rise under appropriate circumstances to both a criminal prosecution for theft
and a civil action for the value of the property unlawfully removed. The novel aspect of this case
arises from the fact that the property was immediately recovered by The Bay. Accordingly, The
Bay cannot sue for the value of the stolen property, the cost of repairing the property, or the loss of
use of the property - generally speaking, the traditional measures of damages (see Halsbury's Vol.
12 para. 1159 and 1170, and S.M. Waddams, The Law of Damages, 2nd ed. (Toronto: Canada Law
Book, 1991), Ch. 1 "Loss of Property"). The question is whether civil causes of action for trespass
to chattels and/or trespass to land can give rise to recovery for the type of damages sought by The
Bay in this case.
Trespass to Chattels
In Clerk and Lindsell on Torts, 17th ed. (London: Sweet & Maxwell, 1995), at p. 702, the authors
define trespass to chattels, or "trespass to goods", as being concerned with "the direct, immediate
interference with the plaintiff's possession of a chattel". Halsbury's offers a similar definition at
Volume 45, para. 1491: "Trespass to goods is an unlawful disturbance of the possession of goods
by seizure or removal, or by a direct act causing damage to the goods". Prima facie, theft would
seem to qualify as being a direct and immediate interference with The Bay's possession. The
defendant physically removed the goods in question from the display counter, placed them in his
bag, and left the store without making any attempt at payment. The more difficult question,
discussed below, concerns damages.

Trespass to Land
Clerk and Lindsell define trespass to land, at p. 837, as consisting of "any unjustified intrusion by
one person upon land in the possession of another". Halsbury's, Vol. 45, para. 1384 states that
"every unlawful entry by one person on land in possession of another is trespass for which an action
lies ...". The plaintiff relies, in part, on the decision of Mr. Justice Brodeur, writing a concurring
opinion in the Supreme Court of Canada decision in Gross v. Wright, [1923] S.C.R. 214 at 234,
describing the law of trespass as follows:
The law is to the effect that if a land is subject to a certain right, a person who
unlawfully uses such land for any purpose other than that of exercising the right to
which it is subject is a trespasser.
In the same case, Mr. Justice Duff stated at p. 224:
He [the defendant] became a trespasser because having authority to enter upon his
neighbour's property for a certain purpose he was using it for another purpose for
which he was not authorized.
Given this rather sweeping definition of trespass to property, it is certainly arguable that an
individual coming onto property for the purpose of committing theft is engaging in an unauthorized
use of the land. The Bay submits that the public is invited into its retail stores for the purpose of
shopping, browsing and purchasing items that are offered for sale. Regarding the downtown store
involved in the case at bar, it may also be contended that as it is part of the system of underground
pedestrian tunnels, the public is invited to walk through the premises on their way elsewhere
provided they do not disrupt the operation of the store. In any case, entry for the purposes of theft
would be inconsistent with any of these authorized purposes. Except for the question of damages,
the tort is therefore made out.
Damages for Trespass
Had the defendant ultimately been successful in his attempted theft, it would be clear that The Bay
would have been deprived of possession of the items. The Bay would thus have a strong civil claim
for the value of the stolen items. In the case at bar, however, the goods were recovered. By the
more traditional conceptions of damages, there was accordingly no loss. The Bay still has the five
pairs of gloves, in their original condition, to sell to consumers. There is ample authority, however,
for the proposition that trespass to chattels or land is actionable per se, i.e., without the need for the
plaintiff to prove that actual damage was sustained. (For trespass being actionable per se, see,
among others, Clerk and Lindsell at 703, 840-1, and G.J.L. Fridman, The Law of Torts in Canada,
Vol. 1 (Toronto: Carswell, 1989) at 7).
Given that trespass is actionable per se, the plaintiff then submits that damages are ‘at large’.
Reliance is placed on the statement of A.I. Ogus in The Law of Damages (London: Butterworths,
1973) at 23, cited with approval by the Alberta Court of Appeal in Bank of Nova Scotia v. Dunphy
Leasing Enterprises Ltd. (1991), 120 A.R. 241 at 259 that:

damages for torts actionable per se are said to be ‘at large’, that is to say the Court,
taking all the relevant circumstances into account, will reach an intuitive assessment
of the loss which it considers the plaintiff has sustained.
The Bay submits that of the relevant circumstances to be taken into account, the "pre-eminent
circumstance" is the per shoplifter cost of surveillance, investigation and apprehension.
In British Motor Trade Association v. Salvadori, [1949] 1 Ch. 556, Roxburg J. awarded a trade
association damages as compensation for the costs of investigating an illegal conspiracy to procure
breaches of contracts among the association's members. At p. 569, Roxburg J. stated:
The plaintiffs [i.e. the Association] are bound to react strongly against such counter-
attack which imperils their very existence.
....
To resist such a counter-attack and also counter-attacks from various other
directions, the plaintiffs maintain, and must maintain, a large investigation
department, and the money actually expended in unravelling and detecting the
unlawful machinations of the defendants which have been proved in this case before
any proceedings could be taken must have been considerable. I can see no reason for
not treating the expenses so incurred which could not be recovered as part of the
costs of the action as directly attributable to their tort or torts. That these expenses
cannot be precisely quantified is true, but it is also immaterial. (emphasis added)
At this point in the analysis, it may be useful to consider a number of possible caveats. First, the
essence of a tort which is actionable per se is that no damage need be proven. This is in contrast to
virtually all other torts in which proof of damages is a necessary condition for establishing the tort.
One school of thought is that what is distinct about torts actionable per se is that nominal damages
may be awarded in the absence of proven loss. The division of causes of action into those which
require as one of the elements for recovery the suffering by the plaintiff of actual loss or detriment,
and those which do not, is a product of common law history. McCormick Handbook On The Law
of Damages (St. Paul: West Publishing Co., 1935) stated at p. 88:
In the earlier actions, notably trespass, which was the mode of recovery for assault
on one's person and for invasion of one's possession of land and for interference with
one's possession of personal property, attention was concentrated upon the
defendant's willful breach of the peace as a wrong to the state, and the injury to the
plaintiff was but an incidental consideration. Consequently, it was natural for the rule
to grow up that, in the absence of any showing of actual detriment, the plaintiff in an
action for trespass to person or property may nevertheless recover nominal damages,
and so the rule remains as to deliberate and willful trespasses.
The definition of nominal damages offered by Lord Halsbury L.C. in the "Mediana", [1900] A.C.
113 (H.L.) at 116 would seem consistent with this analysis:
`Nominal damages' is a technical phrase which means that you have negatived
anything like real damages, but that you are affirming by your nominal damages that

there is an infraction of a legal right which, though it gives you no right to any real
damages at all, yet gives you a right to the verdict or judgment because your legal
right has been infringed.
If, on the other hand, the plaintiff claims to have suffered actual damages, then upon proof of those
damages the appropriate compensatory award may be made. The fact that the underlying tort is
actionable per se would be irrelevant.
This view holds that torts which are actionable per se are special because they are the only torts
actionable without proof of actual damages. In such cases, nominal damages are available.
Damages awards are not restricted to nominal damages, but any claim by the plaintiff for damages
in excess of nominal damages requires proof of actual damages as in any other tort.
It is important to note that this view may be at odds with the tenor, if not strictly speaking the
substance, of the decision of the Alberta Court of Appeal in Bank of Nova Scotia v. Dunphy
Leasing, supra. The relevant passage from the judgment, at p. 259, is set out below:
First, the trial judge would have needed to consider whether the circumstances
warranted an award of damages for trespass of other than a nominal amount. There
is no rule of law that restricts an award of damages for trespass to a nominal amount
only. See Street on Torts (8th Ed.), M. Brazier ed. (London: Butterworths, 1988),
at 464; G.W.K. Ltd. v. Dunlop (1926), 42 T.L.R. 376 (K.B.), and Pearson v. Duke,
[1931] 2 W.W.R. 442, at 444 (Sask. C.A.). Therefore, depending on the
circumstances of a given case, a court may determine that an award of damages for
trespass should be more than a nominal sum. As explained by A.I. Ogus in The Law
of Damages (London: Butterworths, 1973), at 23:
Damages for torts actionable per se are said to be `at large', that is to
say the Court, taking all the relevant circumstances into account, will
reach an intuitive assessment of the loss which it considers the
plaintiff has sustained.
Moreover, to recover damages for trespass to goods, a plaintiff is not required

[emphasis is that of the Alberta Court of Appeal] to prove actual damage: Leitch &
Co. v. Leydon, [1931] A.C. 90, at 106 (H.L.). Liability flows from the act of
trespass. G.H.L. Fridman, Q.C., in The Law of Torts in Canada, vol. 1, at 7 (Toronto:
Carswell, 1989), explains this principle in this way:
Trespass in all its forms is actionable per se, i.e. without the need for
the plaintiff to prove he has sustained actual damage. ... [t]he absence
of any requirement that damage must be shown before an action will
lie is an important hallmark of trespass as contrasted with other torts.
Under this approach, it seems that the court can award any amount of damages that is appropriate in
the circumstances because torts which are actionable per se attract damages at large.

The practical difference between these two approaches, though perhaps not large, is one of
emphasis and the burden of proof. Under the formulation adopted by the Alberta Court of Appeal,
it would appear that the mere fact of a trespass results in the court "taking all the circumstances into
account [and] reach[ing] an intuitive assessment of the loss which it considers the plaintiff has
sustained". Actual damages need not be proven. In contrast, under the alternative approach
described above, proof of the mere fact of the trespass simply produces an entitlement to nominal
damages. If the plaintiff seeks greater damages, the plaintiff must demonstrate that he or she
actually suffered such a loss. Instead of illuminating a number of circumstances which assist the
court in its intuitive assessment of damages, the plaintiff must prove to the court that those damages
have been sustained. Applied to the facts at bar, the Alberta Court of Appeal approach would view
the $1,167 per shoplifter security cost as a circumstance to be considered in assessing damages.
The alternative approach would require The Bay to prove it suffered that loss.
The second caveat concerns trespass to land. As noted above, trespass to land is defined as any
unjustifiable intrusion by one person upon the land in the possession of another. Entering The Bay
for the purpose of stealing merchandise may certainly be considered an unjustifiable purpose.
Turning to the issue of damages though, it is arguable that any damages awarded must relate to the
"wrong" of trespassing on another's land. There must be damage to the land, loss of the use of the
land, or infringement of the rights embodied by the possession of land. It could be argued that theft
of a chattel, or the cost of the security precautions taken to prevent the theft of a chattel, do not
relate to the land. They relate to the chattel. The Bay's concern over, and interest in, shoplifting is
as a chattel owner, not as a landowner. Accordingly, only nominal damages would be available.
One interesting difficulty that arises from The Bay's claim for the costs of loss prevention is
whether such damages would really be compensatory. Assuming the price of merchandise at The
Bay has been increased to reflect the cost of loss prevention measures, subsequently awarding The
Bay those costs on a per arrest basis could amount to double recovery. If The Bay were to receive a
judgment in this case favourable to its position and then reduce the cost of merchandise
accordingly, the double recovery issue would be eliminated. Of course, how the court could ever
determine that prices were reduced to account for recovery is somewhat difficult to envisage. The
number of economic arguments that could be brought to bear in analyzing this issue is obviously
considerable but, nevertheless, the nub of the question remains: Does The Bay really suffer any
loss in the form of loss prevention costs, or do consumers? If the answer is the latter, why should
The Bay recover?
Finally, though perhaps more a social rather than a legal issue, there is the question of how the costs
of preventing shoplifting would be most efficiently distributed. While the figure of $4,382,000 in
loss prevention costs incurred by The Bay in Ontario is clearly significant, as compared to the
merchandise revenues of The Bay in Ontario, the $4 million figure is doubtless quite small.
Compared to the costs to the parties and to the civil justice system of permitting the type of action
advocated by The Bay, it is quite likely less expensive to view loss prevention as a cost of doing
business that is absorbed by all consumers through fractionally increased prices.

Implications
In the virtual absence of authorities which consider similar fact situations to the one at bar, it would
seem that one way of assessing whether the law should develop in the manner advocated by The
Bay is to consider the possible implications of such a decision. The purpose in providing these
examples is not to analyze each particular one but merely to illustrate how this line of reasoning
could conceivably develop.
One analogous situation regarding trespass to land would be the cost of a fence. Should a
landowner be able to recover the cost of constructing a fence from the individual who climbs the
fence in order to trespass on the land?
If an individual steals a car, presumably a trespass to chattels, is that person liable for not only the
value of the car but also incidental costs, such as the security system of the owner's garage from
which the car was stolen? What about that portion of the owner's insurance premium that relates to
the risk of damage or loss due to theft?
So, too, must both parties to the incident be private actors? Should it be permissible for society,
through the government, to pursue from a criminal offender, who is also a tortfeasor, the costs of
the police, administrative, judicial and prison resources necessary to investigate, apprehend,
prosecute and imprison the individual?
....
Is Tort Law the Appropriate Forum?
Having examined the plaintiff's submissions in the context of the existing law of trespass and
damages, and then illustrating some possible implications of finding in favour of The Bay, it falls to
consider whether recovery of loss prevention costs is in fact compensatory. From one perspective,
in a general sense the answer is "yes". While there are issues of double recovery and appropriate
quantification, it is clear that someone is actually paying for all these security measures. Arguably,
that entity should recover its costs from the tortfeasor. Viewed slightly differently, however, it
would also seem possible to say that, in reality, this action is not about nor is it truly motivated by
the goal of compensation. It is about deterrence. And deterrence and the effort to reduce crime is in
principle beyond the realm of tort law. They are objectives which ought properly to be pursued
through the criminal justice system. Professor Bruce Feldthusen in his article, "Recent
Developments in the Canadian Law of Punitive Damages" in Remedies: Issues and Perspectives
(edited by Jeffrey Berryman, Carswell, 1991), stated at p. 80:
The basic philosophical underpinnings of tort law are inconsistent with economic
deterrence, and general tort litigation is an awkward vehicle with which to attempt to
achieve regulatory deterrence.
If The Bay's goal is really to deal more effectively with shoplifters then perhaps it should seek to
convince Parliament and the police to adopt a sterner stance rather than seek to invoke the aid of the
already overburdened civil justice system.
....

Conclusion
The specific types of relief sought by The Bay in this action are not the appropriate subject for civil
recovery from the defendant. In keeping with traditional tort law, The Bay will have judgment for
trespass against the defendant in the nominal amount of $100 together with costs assessed in
accordance with the Small Claims Court tariff pursuant to rule 57.05(3).

Antrim Truck Centre Ltd v Ontario (Transportation)
2013 SCC 13
[From 1978 to 2004, the appellant owned a truck stop on Highway 17 in eastern Ontario. In
September 2004, the respondent opened a new section of Highway 417 running parallel to Highway
17. Motorists travelling on the new highway did not have direct access to the appellant’s truck stop
and so it was effectively put out of business. The Ontario Municipal Board (the “Board”) awarded
compensation to the appellant under the Expropriations Act on the basis that the respondent’s
opening of the new highway amounted to a private nuisance that had caused damage to the
appellant. On appeal, the Court of Appeal for Ontario found that the Board’s finding of private
nuisance was unreasonable because it failed to give adequate weight to the public purpose of the
respondent’s actions. At issue in the Supreme Court were the elements of the private nuisance
action and how they should be applied when the alleged nuisance results from the carrying out of a
public purpose.]
The judgment of the Court was delivered by Cromwell J. —
First Question: What Are the Elements of Private Nuisance?
….
19. The elements of a claim in private nuisance have often been expressed in terms of a two-part
test…: to support a claim in private nuisance the interference with the owner’s use or enjoyment of
land must be both substantial and unreasonable. A substantial interference with property is one that
is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis,
which is concerned with whether the non-trivial interference was also unreasonable in all of the
circumstances….
20. The two-part approach, it must be conceded, is open to criticism. It may sometimes introduce
unnecessary complexity and duplication into the analysis. When it is applied, the gravity of the
harm is, in a sense, considered twice: once in order to apply the substantial interference threshold
and again in deciding whether the interference was unreasonable in all of the circumstances.
21. On balance, however, my view is that we ought to retain the two-part approach with its
threshold of a certain seriousness of the interference…. Retaining a substantial interference
threshold underlines the important point that not every interference, no matter how minor or
transitory, is an actionable nuisance; some interferences must be accepted as part of the normal give
and take of life.…
22. What does this threshold require? … [A] substantial injury to the complainant’s property
interest is one that amounts to more than a slight annoyance or trifling interference. As La Forest J.
put it in Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, actionable nuisances
include “only those inconveniences that materially interfere with ordinary comfort as defined
according to the standards held by those of plain and sober tastes”, and not claims based “on the

prompting of excessive ‘delicacy and fastidiousness’”: p. 1191. Claims that are clearly of this latter
nature do not engage the reasonableness analysis.
23. In referring to these statements I do not mean to suggest that there are firm categories of types
of interference which determine whether an interference is or is not actionable…. Nuisance may
take a variety of forms and may include not only actual physical damage to land but also
interference with the health, comfort or convenience of the owner or occupier:... The point is not
that there is a typology of actionable interferences; the point is rather that there is a threshold of
seriousness that must be met before an interference is actionable.
24. I therefore find that a private nuisance cannot be established where the interference with
property interests is not, at least, substantial. To justify compensation, however, the interference
must also be unreasonable. This second part of the private nuisance test is the focus of the next two
issues to which I now turn.
Second Question: How Is Reasonableness Assessed in the Context of Interference Caused by

Projects That Further the Public Good?
25. The main question here is how reasonableness should be assessed when the activity causing the
interference is carried out by a public authority for the greater public good. As in other private
nuisance cases, the reasonableness of the interference must be assessed in light of all of the relevant
circumstances. The focus of that balancing exercise, however, is on whether the interference is such
that it would be unreasonable in all of the circumstances to require the claimant to suffer it without
compensation.
26. In the traditional law of private nuisance, the courts assess, in broad terms, whether the
interference is unreasonable by balancing the gravity of the harm against the utility of the
defendant’s conduct in all of the circumstances…. In relation to the gravity of the harm, the courts
have considered factors such as the severity of the interference, the character of the neighbourhood
and the sensitivity of the plaintiff…. The frequency and duration of an interference may also be
relevant in some cases…. A number of other factors, which I will turn to shortly, are relevant to
consideration of the utility of the defendant’s conduct. The point for now is that these factors are not
a checklist; they are simply “[a]mong the criteria employed by the courts in delimiting the ambit of
the tort of nuisance”: Tock, at p. 1191…. Courts and tribunals are not bound to, or limited by, any
specific list of factors. Rather, they should consider the substance of the balancing exercise in light
of the factors relevant in the particular case.
27. The way in which the utility of the defendant’s conduct should be taken into account in the
reasonableness analysis is particularly important in this case and would benefit from some
explanation.
28. The first point is that there is a distinction between the utility of the conduct, which focuses on
its purpose, such as construction of a highway, and the nature of the defendant’s conduct, which
focuses on how that purpose is carried out. Generally, the focus in nuisance is on whether the
interference suffered by the claimant is unreasonable, not on whether the nature of the defendant’s
conduct is unreasonable. This point was made by the court in Jesperson’s Brake & Muffler Ltd. v.

Chilliwack (District) (1994), 88 B.C.L.R. (2d) 230 (C.A.). In that case, the construction of an
overpass resulted in a 40 percent drop in the market value of the claimant’s lands. The statutory
authority argued that the claimant had to establish (and had failed to do so) that the statutory
authority had used its land unreasonably. The Court of Appeal correctly rejected that contention.
The focus of the reasonableness analysis in private nuisance is on the character and extent of the
interference with the claimant’s land; the burden on the claimant is to show that the interference is
substantial and unreasonable, not to show that the defendant’s use of its own land is unreasonable.
29. The nature of the defendant’s conduct is not, however, an irrelevant consideration. Where the
conduct is either malicious or careless, that will be a significant factor in the reasonableness
analysis…. Moreover, where the defendant can establish that his or her conduct was reasonable, that
can be a relevant consideration, particularly in cases where a claim is brought against a public
authority. A finding of reasonable conduct will not, however, necessarily preclude a finding of
liability. The editors of Fleming’s The Law of Torts put this point well at s. 21.120:
... unreasonableness in nuisance relates primarily to the character and extent of the harm
caused rather than that threatened.... [T]he “duty” not to expose one’s neighbours to a
nuisance is not necessarily discharged by exercising reasonable care or even all possible
care. In that sense, therefore, liability is strict. At the same time, evidence that the
defendant has taken all possible precaution to avoid harm is not immaterial, because it
has a bearing on whether he subjected the plaintiff to an unreasonable interference, and is
decisive in those cases where the offensive activity is carried on under statutory
authority.... [I]n nuisance it is up to the defendant to exculpate himself, once a prima
facie infringement has been established, for example, by proving that his own use was
“natural” and not unreasonable. [Emphasis added.]
30. The second point is that the utility of the defendant’s conduct is especially significant in claims
against public authorities. Even where a public authority is involved, however, the utility of its
conduct is always considered in light of the other relevant factors in the reasonableness analysis; it
is not, by itself, an answer to the reasonableness inquiry. Moreover, in the reasonableness analysis,
the severity of the harm and the public utility of the impugned activity are not equally weighted
considerations. If they were, an important public purpose would always override even very
significant harm caused by carrying it out. As the editors of Fleming’s The Law of Torts put it, the
utility consideration “must not be pushed too far…. [A] defendant cannot simply justify his
infliction of great harm upon the plaintiff by urging that a greater benefit to the public at large has
accrued from his conduct”: s. 21.110. The words of McIntyre J.A. in Royal Anne Hotel [Co Ltd v
Village of Ashcroft (1979), 95 DLR (3d) 756] are apposite:
There is no reason why a disproportionate share of the cost of such a beneficial service
should be visited upon one member of the community by leaving him uncompensated for
damage caused by the existence of that which benefits the community at large. [p. 761]
….
34. Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993), 62 O.A.C.
202, concerned a claim in nuisance on the basis that subway lines caused noise and vibrations
affecting the plaintiffs’ enjoyment of their property. In allowing the appeal from an award of
damages, the Court of Appeal noted that “where an essential public service is involved the factor of

the utility of the defendant’s conduct must not be disregarded. Indeed, I think it must be given
substantial weight”: para. 46. The court noted, however, that “private rights cannot be trampled
upon in the name of the public good”: para. 46. It also underlined this point by quoting, at para. 19,
the following passage with approval: “Liability for damages is imposed in those cases in which the
harm or risk to one is greater than he ought to be required to bear under the circumstances, at least
without compensation”: Schenck v. The Queen (1981), 34 O.R. (2d) 595 (H.C.J.), per Robins J. (as
he then was), at p. 603, citing Restatement of the Law, Second: Torts 2d, vol. 4 (1979), at § 822
(emphasis added). In other words, the question is not simply whether the broader public good
outweighs the individual interference when the two are assigned equal weight. Rather, the question
is whether the interference is greater than the individual should be expected to bear in the public
interest without compensation.
35. The court’s statement in Mandrake that the utility of the defendant’s conduct should be given
“substantial weight” must be viewed in the context of this point. The court, in conducting its
analysis, did not simply conclude that the public benefit outweighed the individual harm. Instead, it
considered all of the circumstances, including: the essentially commercial nature of the area, in
which people operating businesses are required to put up with a considerably greater intrusion on
their sensibilities than do people living in residential areas; the fact that the presence of the subway
had no negative effect on the profitability of the plaintiffs’ business; the absence of material damage
to the building; and the fact that the noise and vibrations of which the claimants complained were
the inevitable result of the operation of the subway.
36. Mandrake therefore, does not support a simple trumping of the private interest by the public
utility of the defendant’s conduct, but rather a careful weighing of interests taking into account all
of the circumstances. The question asked and answered by the court was not simply whether the
public benefit outweighed the private interference, but whether that interference, in light of all of
the circumstances, was more than the plaintiffs could reasonably be expected to bear without
compensation.
….
38. Generally speaking, the acts of a public authority will be of significant utility. If simply put in
the balance with the private interest, public utility will generally outweigh even very significant
interferences with the claimant’s land. That sort of simple balancing of public utility against private
harm undercuts the purpose of providing compensation for injurious affection. That purpose is to
ensure that individual members of the public do not have to bear a disproportionate share of the cost
of procuring the public benefit. This purpose is fulfilled, however, if the focus of the reasonableness
analysis is kept on whether it is reasonable for the individual to bear the interference without
compensation, not on whether it was reasonable for the statutory authority to undertake the work. In
short, the question is whether the damage flowing from the interference should be properly viewed
as a cost of “running the system” and therefore borne by the public generally, or as the type of
interference that should properly be accepted by an individual as part of the cost of living in
organized society….
39. ... The distinction is thus between, on one hand, interferences that constitute the “give and take”
expected of everyone and, on the other, interferences that impose a disproportionate burden on

individuals. That in my view is at the heart of the balancing exercise involved in assessing the
reasonableness of an interference in light of the utility of the public authority’s conduct.
40. Of course, not every substantial interference arising from a public work will be unreasonable.
The reasonableness analysis should favour the public authority where the harm to property interests,
considered in light of its severity, the nature of the neighbourhood, its duration, the sensitivity of the
plaintiff and other relevant factors, is such that the harm cannot reasonably be viewed as more than
the claimant’s fair share of the costs associated with providing a public benefit. This outcome is
particularly appropriate where the public authority has made all reasonable efforts to reduce the
impact of its works on neighbouring properties.
….
42. … [T]he duration of the interference is a relevant consideration.… [S]ome sorts of temporary
inconvenience are more obviously part of the normal “give and take” than are more prolonged
interferences. While temporary interferences may certainly support a claim in nuisance in some
circumstances, interferences that persist for a prolonged period of time will be more likely to attract
a remedy….
43. Another important idea is that the traditional consideration relating to the character of the
neighbourhood may be highly relevant in the overall balancing. This point is particularly relevant in
cases where a claim is brought against a public authority. As Michael Senzilet has written,
With the urban environments of today, people live much closer together and much closer
to public corridors than they did 100 years ago.... In today’s urban fabric, buildings are
closer together, closer to roads, building lots are smaller, and there are far more public
projects that are both possible and required. Surely, the choice of living in the urban core,
in a suburb, or in the countryside exposes one to differences and one’s choice must be
made taking into account those differences. (“Compensation for Injurious Affection
Where No Land Is Taken”, unpublished LL.M. thesis, University of Ottawa (1987), at p.
73.)
44. … While nuisance focuses mainly on the harm and not on the blameworthiness of the
defendant’s conduct, the fact that a public work is carried out with “all reasonable regard and care”
for the affected citizens is properly part of the reasonableness analysis….
45. To sum up on this point, my view is that in considering the reasonableness of an interference
that arises from an activity that furthers the public good, the question is whether, in light of all of
the circumstances, it is unreasonable to expect the claimant to bear the interference without
compensation.
Third Question: Does the Unreasonableness of an Interference Need to Be Considered When That
Interference Is Physical or Material?
46. The appellant submits that reasonableness does not need to be considered when the interference
constitutes “material” or “physical” damage to the land. Reasonableness only needs to be addressed,
the submission goes, with respect to other types of interference such as loss of amenities. In this

case, the appellant maintains that the damage to its land was “material” and that therefore no
reasonableness analysis was necessary. I respectfully disagree and conclude that the Court of
Appeal was correct to hold that the question of reasonableness should be considered in all cases.
47. The distinction between material or physical harms on the one hand and interferences such as
loss of amenities on the other has a long history and deep roots, going back at least to the House of
Lords decision in St. Helen’s Smelting Co. v. Tipping (1865), 11 H.L.C. 642, 11 E.R. 1483. In that
case, the Lord Chancellor distinguished between nuisance causing “material injury” to property and
nuisance “productive of sensible personal discomfort”, finding that only the latter category required
an assessment of whether an interference is reasonable taking into account all of the surrounding
circumstances: p. 650. This approach has since been adopted in many Canadian decisions… At the
same time, there is appellate authority affirming the need to consider the reasonableness of the
interference in every case….
48. My view is that the reasonableness inquiry should not be short-circuited on the basis of certain
categories of interference that are considered self-evidently unreasonable…. The sort of balancing
inherent in the reasonableness analysis is at the heart of the tort of private nuisance. As La Forest J.
put it in Tock, the law only intervenes “to shield persons from interferences to their enjoyment of
property that were unreasonable in the light of all the circumstances”: p. 1191. The legal analysis in
a nuisance case is more likely to yield sound results if this essential balancing exercise is carried out
explicitly and transparently rather than implicitly by applying a murky distinction.
49. There are obvious difficulties in making the analysis turn on classifying interferences as
constituting material or physical damage. It will not always, or even generally, be a simple matter to
distinguish between damage that is “material or physical” and damage that is a simple “loss of
amenity”. The distinction proposed by the appellant is particularly difficult to apply in cases like
this one, where the nuisance is an interference with access to land. The damage to the appellant here
could be considered material in the sense that it caused significant financial loss, but it could
perhaps also be considered in some sense to be a loss of amenity because there was no harm to the
property itself. The property declined in value, but that is also the case in some loss of amenity
situations.
50. While I am not convinced of the usefulness of the distinction between material injury and loss
of amenity, I acknowledge that where there is significant and permanent harm caused by an
interference, the reasonableness analysis may be very brief. As the British Columbia Court of
Appeal noted in Royal Anne Hotel,
Where . . . actual physical damage occurs it is not difficult to decide that the interference
is in fact unreasonable. Greater difficulty will be found where the interference results in
lesser or no physical injury but may give offence by reason of smells, noise, vibration or
other intangible causes. [p. 760]
Thus, even though the reasonableness of the interference should be assessed in every case, the court
will sometimes quite readily conclude that some types of interferences are unreasonable without
having to engage in a lengthy balancing analysis….
51. I therefore conclude that reasonableness is to be assessed in all cases where private nuisance is
alleged. Once a claimant passes the threshold test of showing harm that is substantial in the sense

that it is non-trivial, there ought to be an inquiry into whether the interference is unreasonable,
regardless of the type of harm involved.
Fourth Question: Did the Court of Appeal Err in Finding That the Board’s Application of the Law
of Nuisance to the Facts Was Unreasonable?
[The Court concluded that the Court of Appeal had made two errors in overturning the Board’s
finding of private nuisance: (1) it had treated the factors relevant to the reasonableness balancing
exercise as a mandatory checklist and had faulted the Board for not explicitly considering two of
those factors; and (2) it had placed undue emphasis on the public importance of highway
construction, allowing it to “swamp consideration of whether it was reasonable to require the
appellant to bear without compensation the burden inflicted on it by the construction.” The Supreme
Court thus restored the Board’s finding that the respondent’s acts amounted to a private nuisance for
which compensation was owed to the appellant, a finding the Supreme Court found to be
reasonable.]

Norberg v Wynrib
[1992] 2 SCR 226
[Appellant became addicted to pain killers, and to one addictive drug in particular. She obtained the
drugs from various doctors and from her sister. Eventually she began seeing the respondent, an
elderly medical practitioner and, using several pretexts, obtained prescriptions for pain killers from
him. At some point during this period, respondent confronted appellant about her drug usage and
she admitted that she was addicted. He then made suggestions of a sexual nature by pointing
upstairs where his apartment was located. Appellant then obtained the drug from other doctors but,
when they reduced her supply, sought out respondent and gave in to his demands. Several instances
of fondling and simulated intercourse occurred over the course of more than a year. After a time,
appellant told respondent that she needed help with her addiction. Respondent advised appellant to
"just quit". Appellant became the subject of a criminal investigation and respondent ceased giving
her prescriptions but continued to give her pills after her visits upstairs. After being charged with
"double doctoring" -- obtaining narcotic prescription drugs from a doctor without disclosing
particulars of prescriptions from other doctors -- appellant went to a rehabilitation centre on her own
initiative.
Appellant sought general and punitive damages against the respondent on several grounds,
including sexual assault, a battery. At issue here was, inter alia, whether the defences of consent or
ex turpi were available to respondent in answer to the action in battery.]
The judgment of La Forest, Gonthier and Cory JJ. was delivered by

1 LA FOREST J.:--
….
Assault -- The Nature of Consent
26 The alleged sexual assault in this case falls under the tort of battery. A battery is the
intentional infliction of unlawful force on another person. Consent, express or implied, is a defence
to battery. Failure to resist or protest is an indication of consent "if a reasonable person who is
aware of the consequences and capable of protest or resistance would voice his objection": see
Fleming, The Law of Torts (7th ed. 1987), at pp. 72-73. However, the consent must be genuine; it
must not be obtained by force or threat of force or be given under the influence of drugs. Consent
may also be vitiated by fraud or deceit as to the nature of the defendant's conduct. The courts below
considered these to be the only factors that would vitiate consent.
27 In my view, this approach to consent in this kind of case is too limited. As Heuston and
Buckley, Salmond and Heuston on the Law of Torts (19th ed. 1987), at pp. 564-65, put it: "A man
cannot be said to be 'willing' unless he is in a position to choose freely; and freedom of choice
predicates the absence from his mind of any feeling of constraint interfering with the freedom of his
will". A "feeling of constraint" so as to "interfere with the freedom of a person's will" can arise in a
number of situations not involving force, threats of force, fraud or incapacity. The concept of
consent as it operates in tort law is based on a presumption of individual autonomy and free will. It
is presumed that the individual has freedom to consent or not to consent. This presumption,

however, is untenable in certain circumstances. A position of relative weakness can, in some
circumstances, interfere with the freedom of a person's will. Our notion of consent must, therefore,
be modified to appreciate the power relationship between the parties.
28 An assumption of individual autonomy and free will is not confined to tort law. It is also the
underlying premise of contract law. The supposition of contract law is that two parties agree or
consent to a particular course of action. However, contract law has evolved in such a way that it
recognizes that contracting parties do not always have equality in their bargaining strength. The
doctrines of duress, undue influence, and unconscionability have arisen to protect the vulnerable
when they are in a relationship of unequal power....
29 If the "justice factor" of unconscionability is used to address the issue of voluntariness in the
law of contract, it seems reasonable that it be examined to address the issue of voluntariness in the
law of tort. This provides insight into the issue of consent: for consent to be genuine, it must be
voluntary. The factual context of each case must, of course, be evaluated to determine if there has
been genuine consent. However, the principles that have been developed in the area of
unconscionable transactions to negate the legal effectiveness of certain contracts provide a useful
framework for this evaluation.
30 An unconscionable transaction arises in contract law where there is an overwhelming
imbalance in the power relationship between the parties…. [T]he circumstances of each case must
be examined to determine if there is an overwhelming imbalance of power in the relationship
between the parties….
38 …. In my view, it [is] the ability of the defendant to "dominate and influence" the plaintiff that
was the important element ….
39 An ability to "dominate and influence" is not restricted to the student-teacher relationship.
Professor Coleman outlines a number of situations which she calls "power dependency"
relationships: see Coleman, "Sex in Power Dependency Relationships: Taking Unfair Advantage of
the 'Fair' Sex" (1988), 53 Alb. L. Rev. 95. Included in these relationships are parent-child,
psychotherapist-patient, physician-patient, clergy-penitent, professor-student, attorney-client, and
employer-employee. She asserts that "consent" to a sexual relationship in such relationships is
inherently suspect. She notes, at p. 96:
The common element in power dependency relationships is an underlying

personal or professional association which creates a significant power
imbalance between the parties ... .
Exploitation occurs when the "powerful" person abuses the position of
authority by inducing the "dependent" person into a sexual relationship,
thereby causing harm.
While the existence of one of these special relationships is not necessarily determinative of an
overwhelming power imbalance, it will, at least in the ordinary case, be required.
40 It must be noted that in the law of contracts proof of an unconscionable transaction involves a
two-step process: (1) proof of inequality in the positions of the parties, and (2) proof of an
improvident bargain. Similarly, a two-step process is involved in determining whether or not there
has been legally effective consent to a sexual assault. The first step is undoubtedly proof of an

inequality between the parties which, as already noted, will ordinarily occur within the context of a
special "power dependency" relationship. The second step, I suggest, is proof of exploitation. A
consideration of the type of relationship at issue may provide a strong indication of exploitation.
Community standards of conduct may also be of some assistance…. If the type of sexual
relationship at issue is one that is sufficiently divergent from community standards of conduct, this
may alert the court to the possibility of exploitation.
Application to this Case
41 The trial judge held that the appellant's implied consent to the sexual activity was voluntary.
Dr. Wynrib, he stated, exercised neither force nor threats of force and the appellant's capacity to
consent was not impaired by her drug use. The Court of Appeal agreed that the appellant voluntarily
engaged in the sexual encounters. However, it must be asked if the appellant was truly in a position
to make a free choice. It seems clear to me that there was a marked inequality in the respective
powers of the parties. The appellant was a young woman with limited education. More important,
she was addicted to the heavy use of tranquilizers and painkillers. On this ground alone it can be
said that there was an inequality in the position of the parties arising out of the appellant's need. The
appellant's drug dependence diminished her ability to make a real choice. Although she did not wish
to engage in sexual activity with Dr. Wynrib, her reluctance was overwhelmed by the driving force
of her addiction and the unsettling prospect of a painful, unsupervised chemical withdrawal.…
43 On the other side of the equation was an elderly, male professional -- the appellant's doctor.
An unequal distribution of power is frequently a part of the doctor-patient relationship. As it is
stated in The Final Report of the Task Force on Sexual Abuse of Patients, An Independent Task
Force Commissioned by The College of Physicians and Surgeons of Ontario (November 25, 1991)
(Chair: Marilou McPhedran), at p. 11:
Patients seek the help of doctors when they are in a vulnerable state -- when
they are sick, when they are needy, when they are uncertain about what
needs to be done.
The unequal distribution of power in the physician-patient relationship

makes opportunities for sexual exploitation more possible than in other
relationships. This vulnerability gives physicians the power to exact sexual
compliance. Physical force or weapons are not necessary because the
physician's power comes from having the knowledge and being trusted by
patients.
In this case, Dr. Wynrib knew that the appellant was vulnerable and driven by her compulsion for
drugs. It is likely that he knew or at least strongly suspected that she was dependant upon Fiorinal
before she admitted her addiction to him. It was he who ferreted out that she was addicted to drugs.
As a doctor, the respondent knew how to assist the appellant medically and he knew (or should have
known) that she could not "just quit" taking drugs without treatment. Dr. Fleming stated:
It is known that withdrawal from continuous use of short-acting barbiturates

is an extremely unpleasant experience and it is natural that Ms. Norberg

would attempt to maintain her supply in the absence of a comprehensive
treatment program that would address her needs (pharmacological and
psychological) during a withdrawal program.
The respondent's medical knowledge and knowledge of the appellant's addiction, combined with his
authority to prescribe drugs, gave him power over her. It was he who suggested the sex-for-drugs
arrangement.
44 However, it must still be asked if there was exploitation. In my opinion there was. Dr. Herbert
of the Department of Family Practice, Faculty of Medicine, University of British Columbia,
expressed the opinion that "a reasonable practitioner would have taken steps to attempt to help Ms.
Norberg end her addiction by, for example, suggesting drug counselling, or, at the very least, by
discontinuing her prescriptions of Fiorinal". However, Dr. Wynrib did not use his medical
knowledge and expertise to address the appellant's addiction. Instead, he abused his power over her
and exploited the information he obtained concerning her weakness to pursue his own personal
interests. It seems to me that a sex-for-drugs arrangement initiated by a doctor with his drug addict
patient is a relationship which is divergent from what the community would consider acceptable.
The trial judge (at p. 246) stated that "Dr. Wynrib's conduct would in all likelihood be regarded by
members of the medical profession and the community at large as disgraceful and unprofessional".
McEachern C.J. (at p. 51) referred to the relationship as a "sordid arrangement".
45 There is also a body of opinion which regards sexual contact in any doctor-patient relationship
as exploitative. In the opinion of the Task Force on Sexual Abuse of Patients, supra, at p. 12:
Due to the position of power the physician brings to the doctor-patient

relationship, there are NO circumstances -- NONE -- in which sexual activity
between a physician and a patient is acceptable. Sexual activity between a
patient and a doctor ALWAYS represents sexual abuse, regardless of what
rationalization or belief system the doctor chooses to use to excuse it.
Doctors need to recognize that they have power and status, and that there
may be times when a patient will test the boundaries between them. It is
ALWAYS the doctor's responsibility to know what is appropriate and never
to cross the line into sexual activity.
Indeed, the Hippocratic Oath indicates that sexual contact between a doctor and his or her patient is
fundamentally improper:
In every house where I come I will enter only for the good of my patients,
keeping myself far from all intentional ill-doing and all seduction, and
especially from the pleasures of love with women or with men, be they free
or slaves.
(Dorland's Illustrated Medical Dictionary (27th ed. 1988), at p. 768.)

These observations were directed at the regulation of the doctor-patient relationship, rather than
civil liability and I need not consider their precise implications in the latter context. For we are not
here dealing with just a doctor-patient relationship but a doctor-drug addict relationship, and it was

not just a sexual relationship but a sex-for-drugs relationship. These circumstances suggest that the
appellant's consent was not genuine for the purposes of the law.
46 The respondent argues that the appellant exploited the weakness and loneliness of an elderly
man to obtain drugs. While Dr. Wynrib, no doubt, had vulnerabilities of his own, it seems to me that
the determining factor in this case is that he instigated the relationship -- it was he, not the appellant,
who used his power and knowledge to initiate the arrangement and to exploit her vulnerability. The
respondent's argument might be more persuasive if it had been the appellant who had suggested that
she would exchange sex for drugs. I am also not convinced by assertions that the respondent
showed compassion and interest in the appellant's well-being. This does not square with his flagrant
disregard for her need for treatment. If he were truly interested in her well-being, he would have
helped her overcome her addiction….
48 To summarize, in my view, the defence of consent cannot succeed in the circumstances of this
case. The appellant had a medical problem -- an addiction to Fiorinal. Dr. Wynrib had knowledge of
the problem. As a doctor, he had knowledge of the proper medical treatment, and knew she was
motivated by her craving for drugs. Instead of fulfilling his professional responsibility to treat the
appellant, he used his power and expertise to his own advantage and to her detriment. In my
opinion, the unequal power between the parties and the exploitative nature of the relationship
removed the possibility of the appellant's providing meaningful consent to the sexual contact.
Ex Turpi Causa
49 In my opinion, the principle of ex turpi causa non oritur actio does not bar the appellant's
recovery for damages. It is wise to recall the statement of Estey J. in Canada Cement LaFarge Ltd.
v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452, at p. 476, that "cases where a
tort action has been defeated by the ex turpi causa maxim are exceedingly rare". In my view, this is
not one of those "rare" cases. The respondent forced the sex-for-drugs transaction on the appellant
by virtue of her weakness. He initiated the arrangement for his own sexual gratification and then
impelled her to engage in it. She was unwilling to participate but did so because of her addiction to
drugs. It was only because the respondent prolonged the appellant's chemical dependency that the
illicit relationship was available to him. The respondent has been found liable in this appeal because
he took advantage of the appellant's addiction. To apply the doctrine of ex turpi causa in this case
would be to deny the appellant damages on the same basis that she succeeded in the tort action:
because she acted out of her desperation for Fiorinal. Surely public policy would not countenance
giving to the appellant with one hand and then taking away with the other.
50 It is true that the appellant engaged in the offence of "double-doctoring" during the period in
question. However, Estey J. in Canada Cement LaFarge Ltd., supra, p. 477, indicated that there
must be a sufficient causal link between the appellant's participation in the illegal activity and the
injury suffered. In my view, the offence of "double-doctoring" was irrelevant to the transaction
between the appellant and the respondent. There was no causative link between the injury and the
crime committed by the appellant. If the appellant had been relying on the respondent alone for her
drug supply rather than "double-doctoring", she would have suffered the same harm.
51 In sum, I do not believe that it is in the public interest to absolve a doctor of civil liability
where he deliberately abuses his position of power and influence by suggesting and pursuing a sex-
for-drugs arrangement with a self-admitted drug addict. Accordingly, the ex turpi causa maxim does
not operate in the circumstances of this case to bar relief.

Damages
….
56 In the present case, there were repeated sexual encounters over a substantial period of time
with a person in a position of power. The respondent used his power as a doctor to take advantage
of the fact that the appellant was addicted to drugs. There is some distinction between this case and
the rape cases cited above in that the assault here was not physically violent. However, the
respondent's conduct has caused the appellant humiliation and loss of dignity as is evident from her
testimony. She testified at trial that she thinks about the events with Dr. Wynrib on a daily basis and
that she has felt a great deal of shame. In fact, she felt that she did not deserve to have her son
because of what she had done with Dr. Wynrib. In view of the circumstances, I would award
general damages of $20,000….
58 The question that must be asked is whether the conduct of Dr. Wynrib was such as to merit
condemnation by the Court. It was not harsh, vindictive or malicious to use the terms cited in
Vorvis, supra. However, it was reprehensible and it was of a type to offend the ordinary standards
of decent conduct in the community. Further, the exchange of drugs for sex by a doctor in a position
of power is conduct that cries out for deterrence. As is stated in The Final Report of the Task Force
on Sexual Abuse of Patients, supra, at p. 80:
The limited understanding of sexual abuse involving a breach of trust has

been a major barrier to effective self-regulation. Both the actual harm and the
risk of harm to other patients posed by a physician who chooses to abuse his
position of power to sexually exploit and abuse are rarely identified;
moreover, when harm and risk of harm are identified, both are profoundly
underestimated.
An award of punitive damages is of importance to make it clear that this trend of underestimation
cannot continue. Dr. Wynrib's use of power to gain sexual favours in the context of a doctor-patient
relationship is conduct that is offensive and reprehensible. In all the circumstances, I would award
an additional $10,000 in punitive damages.
[L’Heureux-Dubé and McLachlin JJ. would have disposed of the case on the basis of the breach by
respondent of his fiduciary duty as a doctor to his patient, the appellant, and would have awarded
general damages of $25,000, damages for sexual exploitation of $25,000, and punitive damages of
$20,000. Sopinka J. found that there was valid consent, but that respondent breached his
contractual, professional duty to appellant. While Sopinka J. agreed with the quantum awarded by
La Forest J. for general damages, he would not have awarded punitive damages.]

Health Care Consent Act, 1996
SO 1996, chapter 2
….
PART II
TREATMENT
GENERAL
Application of Part
8. (1) Subject to section 3, this Part applies to treatment. 1996, c. 2, Sched. A, s. 8 (1).
Law not affected
(2) Subject to section 3, this Part does not affect the law relating to giving or refusing consent to
anything not included in the definition of “treatment” in subsection 2 (1). 1996, c. 2, Sched. A,
s. 8 (2).
Meaning of “substitute decision-maker”
9. In this Part,
“substitute decision-maker” means a person who is authorized under section 20 to give or refuse
consent to a treatment on behalf of a person who is incapable with respect to the treatment. 1996,
c. 2, Sched. A, s. 9.
CONSENT TO TREATMENT
No treatment without consent
10. (1) A health practitioner who proposes a treatment for a person shall not administer the
treatment, and shall take reasonable steps to ensure that it is not administered, unless,
(a) he or she is of the opinion that the person is capable with respect to the treatment, and the
person has given consent; or
(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the
person’s substitute decision-maker has given consent on the person’s behalf in accordance
with this Act. 1996, c. 2, Sched. A, s. 10 (1).
Opinion of Board or court governs
(2) If the health practitioner is of the opinion that the person is incapable with respect to the
treatment, but the person is found to be capable with respect to the treatment by the Board on an
application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s
decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to
ensure that it is not administered, unless the person has given consent. 1996, c. 2, Sched. A,
s. 10 (2).
Elements of consent
11. (1) The following are the elements required for consent to treatment:
1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation or fraud. 1996, c. 2, Sched. A,
s. 11 (1).
Informed consent
(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a
reasonable person in the same circumstances would require in order to make a decision about
the treatment; and
(b) the person received responses to his or her requests for additional information about those
matters. 1996, c. 2, Sched. A, s. 11 (2).
Same
(3) The matters referred to in subsection (2) are:
1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment. 1996, c. 2, Sched. A, s. 11 (3).
Express or implied
(4) Consent to treatment may be express or implied. 1996, c. 2, Sched. A, s. 11 (4).
Included consent
12. Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to
presume that consent to a treatment includes,
(a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material
risks and material side effects of the changed treatment are not significantly different from the
nature, expected benefits, material risks and material side effects of the original treatment; and
(b) consent to the continuation of the same treatment in a different setting, if there is no
significant change in the expected benefits, material risks or material side effects of the
treatment as a result of the change in the setting in which it is administered. 1996, c. 2, Sched.
A, s. 12.
Plan of treatment
13. If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of
all the health practitioners involved in the plan of treatment,
(a) propose the plan of treatment;
(b) determine the person’s capacity with respect to the treatments referred to in the plan of
treatment; and
(c) obtain a consent or refusal of consent in accordance with this Act,
(i) from the person, concerning the treatments with respect to which the person is found to be
capable, and
(ii) from the person’s substitute decision-maker, concerning the treatments with respect to
which the person is found to be incapable. 1996, c. 2, Sched. A, s. 13.
Withdrawal of consent
14. A consent that has been given by or on behalf of the person for whom the treatment was
proposed may be withdrawn at any time,
(a) by the person, if the person is capable with respect to the treatment at the time of the
withdrawal;
(b) by the person’s substitute decision-maker, if the person is incapable with respect to the
treatment at the time of the withdrawal. 1996, c. 2, Sched. A, s. 14.

CAPACITY
Capacity depends on treatment
15. (1) A person may be incapable with respect to some treatments and capable with respect to
others. 1996, c. 2, Sched. A, s. 15 (1).
Capacity depends on time
(2) A person may be incapable with respect to a treatment at one time and capable at another.
1996, c. 2, Sched. A, s. 15 (2).
Return of capacity
16. If, after consent to a treatment is given or refused on a person’s behalf in accordance with this
Act, the person becomes capable with respect to the treatment in the opinion of the health
practitioner, the person’s own decision to give or refuse consent to the treatment governs. 1996,
c. 2, Sched. A, s. 16.
Information
17. A health practitioner shall, in the circumstances and manner specified in guidelines
established by the governing body of the health practitioner’s profession, provide to persons found
by the health practitioner to be incapable with respect to treatment such information about the
consequences of the findings as is specified in the guidelines. 1996, c. 2, Sched. A, s. 17.
Treatment must not begin
18. (1) This section applies if,
(a) a health practitioner proposes a treatment for a person and finds that the person is incapable
with respect to the treatment;
(b) before the treatment is begun, the health practitioner is informed that the person intends to
apply, or has applied, to the Board for a review of the finding; and
(c) the application to the Board is not prohibited by subsection 32 (2). 1996, c. 2, Sched. A,
s. 18 (1).
Same
(2) This section also applies if,
(a) a health practitioner proposes a treatment for a person and finds that the person is incapable
with respect to the treatment;
(b) before the treatment is begun, the health practitioner is informed that,
(i) the incapable person intends to apply, or has applied, to the Board for appointment of a
representative to give or refuse consent to the treatment on his or her behalf, or
(ii) another person intends to apply, or has applied, to the Board to be appointed as the
representative of the incapable person to give or refuse consent to the treatment on his or
her behalf; and
(c) the application to the Board is not prohibited by subsection 33 (3). 1996, c. 2, Sched. A,
s. 18 (2).
Same
(3) In the circumstances described in subsections (1) and (2), the health practitioner shall not
begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun,
(a) until 48 hours have elapsed since the health practitioner was first informed of the intended
application to the Board without an application being made;
(b) until the application to the Board has been withdrawn;
(c) until the Board has rendered a decision in the matter, if none of the parties to the application
before the Board has informed the health practitioner that he or she intends to appeal the
Board’s decision; or
(d) if a party to the application before the Board has informed the health practitioner that he or she
intends to appeal the Board’s decision,

(i) until the period for commencing the appeal has elapsed without an appeal being
commenced, or
(ii) until the appeal of the Board’s decision has been finally disposed of. 1996, c. 2, Sched.
A, s. 18 (3).
Emergency
(4) This section does not apply if the health practitioner is of the opinion that there is an
emergency within the meaning of subsection 25 (1). 1996, c. 2, Sched. A, s. 18 (4).
Order authorizing treatment pending appeal
19. (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a
person to consent to a treatment, the treatment may be administered before the final disposition of
the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is
given. 1996, c. 2, Sched. A, s. 19 (1).
Criteria for order
(2) The court may make the order if it is satisfied,
(a) that,
(i) the treatment will or is likely to improve substantially the condition of the person to
whom it is to be administered, and the person’s condition will not or is not likely to
improve without the treatment, or
(ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate
rapidly, without the treatment, and the treatment will or is likely to prevent the
deterioration or to reduce substantially its extent or its rate;
(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm
to him or her;
(c) that the treatment is the least restrictive and least intrusive treatment that meets the
requirements of clauses (a) and (b); and
(d) that the person’s condition makes it necessary to administer the treatment before the final
disposition of the appeal. 1996, c. 2, Sched. A, s. 19 (2).
CONSENT ON INCAPABLE PERSON’S BEHALF
Consent
List of persons who may give or refuse consent
20. (1) If a person is incapable with respect to a treatment, consent may be given or refused on
his or her behalf by a person described in one of the following paragraphs:
1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse
consent to the treatment.
2. The incapable person’s attorney for personal care, if the power of attorney confers authority to
give or refuse consent to the treatment.
3. The incapable person’s representative appointed by the Board under section 33, if the
representative has authority to give or refuse consent to the treatment.
4. The incapable person’s spouse or partner.
5. A child or parent of the incapable person, or a children’s aid society or other person who is
lawfully entitled to give or refuse consent to the treatment in the place of the parent. This
paragraph does not include a parent who has only a right of access. If a children’s aid society
or other person is lawfully entitled to give or refuse consent to the treatment in the place of the
parent, this paragraph does not include the parent.
6. A parent of the incapable person who has only a right of access.
7. A brother or sister of the incapable person.
8. Any other relative of the incapable person. 1996, c. 2, Sched. A, s. 20 (1).

Requirements
(2) A person described in subsection (1) may give or refuse consent only if he or she,
(a) is capable with respect to the treatment;
(b) is at least 16 years old, unless he or she is the incapable person’s parent;
(c) is not prohibited by court order or separation agreement from having access to the incapable
person or giving or refusing consent on his or her behalf;
(d) is available; and
(e) is willing to assume the responsibility of giving or refusing consent. 1996, c. 2, Sched. A,
s. 20 (2).
Ranking
(3) A person described in a paragraph of subsection (1) may give or refuse consent only if no
person described in an earlier paragraph meets the requirements of subsection (2). 1996, c. 2,
Sched. A, s. 20 (3).
Same
(4) Despite subsection (3), a person described in a paragraph of subsection (1) who is present or
has otherwise been contacted may give or refuse consent if he or she believes that no other person
described in an earlier paragraph or the same paragraph exists, or that although such a person exists,
the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her
making the decision. 1996, c. 2, Sched. A, s. 20 (4).
No person in subs. (1) to make decision
(5) If no person described in subsection (1) meets the requirements of subsection (2), the Public
Guardian and Trustee shall make the decision to give or refuse consent. 1996, c. 2, Sched. A,
s. 20 (5).
Conflict between persons in same paragraph
(6) If two or more persons who are described in the same paragraph of subsection (1) and who
meet the requirements of subsection (2) disagree about whether to give or refuse consent, and if
their claims rank ahead of all others, the Public Guardian and Trustee shall make the decision in
their stead. 1996, c. 2, Sched. A, s. 20 (6).
Meaning of “spouse”
(7) Subject to subsection (8), two persons are spouses for the purpose of this section if,
(a) they are married to each other; or
(b) they are living in a conjugal relationship outside marriage and,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law
Act. 1996, c. 2, Sched. A, s. 20 (7); 2004, c. 3, Sched. A, s. 84 (1-3).
Not spouse
(8) Two persons are not spouses for the purpose of this section if they are living separate and
apart as a result of a breakdown of their relationship. 2004, c. 3, Sched. A, s. 84 (4).
Meaning of “partner”
(9) For the purpose of this section,
“partner” means,
(a) REPEALED: 2004, c. 3, Sched. A, s. 84 (5).
(b) either of two persons who have lived together for at least one year and have a close personal
relationship that is of primary importance in both persons’ lives. 2002, c. 18, Sched. A, s. 10;
2004, c. 3; Sched. A, s. 84 (5, 6).

Meaning of “relative”
(10) Two persons are relatives for the purpose of this section if they are related by blood,
marriage or adoption. 1996, c. 2, Sched. A, s. 20 (10).
Meaning of “available”
(11) For the purpose of clause (2) (d), a person is available if it is possible, within a time that is
reasonable in the circumstances, to communicate with the person and obtain a consent or refusal.
1996, c. 2, Sched. A, s. 20 (11).
Principles for giving or refusing consent
21. (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf
shall do so in accordance with the following principles:
1. If the person knows of a wish applicable to the circumstances that the incapable person
expressed while capable and after attaining 16 years of age, the person shall give or refuse
consent in accordance with the wish.
2. If the person does not know of a wish applicable to the circumstances that the incapable
person expressed while capable and after attaining 16 years of age, or if it is impossible to
comply with the wish, the person shall act in the incapable person’s best interests. 1996, c. 2,
Sched. A, s. 21 (1).
Best interests
(2) In deciding what the incapable person’s best interests are, the person who gives or refuses
consent on his or her behalf shall take into consideration,
(a) the values and beliefs that the person knows the incapable person held when capable and
believes he or she would still act on if capable;
(b) any wishes expressed by the incapable person with respect to the treatment that are not
required to be followed under paragraph 1 of subsection (1); and
(c) the following factors:
1. Whether the treatment is likely to,
i. improve the incapable person’s condition or well-being,
ii. prevent the incapable person’s condition or well-being from deteriorating, or
iii. reduce the extent to which, or the rate at which, the incapable person’s condition or
well-being is likely to deteriorate.
2. Whether the incapable person’s condition or well-being is likely to improve, remain the
same or deteriorate without the treatment.
3. Whether the benefit the incapable person is expected to obtain from the treatment
outweighs the risk of harm to him or her.
4. Whether a less restrictive or less intrusive treatment would be as beneficial as the
treatment that is proposed. 1996, c. 2, Sched. A, s. 21 (2).
Information
22. (1) Before giving or refusing consent to a treatment on an incapable person’s behalf, a
substitute decision-maker is entitled to receive all the information required for an informed consent
as described in subsection 11 (2). 1996, c. 2, Sched. A, s. 22.
Conflict
(2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information
Protection Act, 2004. 2004, c. 3, Sched. A, s. 84 (7).
Ancillary treatment
23. Authority to consent to a treatment on an incapable person’s behalf includes authority to
consent to another treatment that is necessary and ancillary to the treatment, even if the incapable
person is capable with respect to the necessary and ancillary treatment. 1996, c. 2, Sched. A, s. 23.

Admission to hospital, etc.
24. (1) Subject to subsection (2), a substitute decision-maker who consents to a treatment on an
incapable person’s behalf may consent to the incapable person’s admission to a hospital or
psychiatric facility or to another health facility prescribed by the regulations, for the purpose of the
treatment. 1996, c. 2, Sched. A, s. 24 (1).
Objection, psychiatric facility
(2) If the incapable person is 16 years old or older and objects to being admitted to a psychiatric
facility for treatment of a mental disorder, consent to his or her admission may be given only by,
(a) his or her guardian of the person, if the guardian has authority to consent to the admission; or
(b) his or her attorney for personal care, if the power of attorney contains a provision authorizing
the attorney to use force that is necessary and reasonable in the circumstances to admit the
incapable person to the psychiatric facility and the provision is effective under subsection
50 (1) of the Substitute Decisions Act, 1992. 1996, c. 2, Sched. A, s. 24 (2).
EMERGENCY TREATMENT
Emergency treatment
Meaning of “emergency”
25. (1) For the purpose of this section and section 27, there is an emergency if the person for
whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the
treatment is not administered promptly, of sustaining serious bodily harm. 1996, c. 2, Sched. A,
s. 25 (1).
Emergency treatment without consent: incapable person
(2) Despite section 10, a treatment may be administered without consent to a person who is
incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the
treatment,
(a) there is an emergency; and
(b) the delay required to obtain a consent or refusal on the person’s behalf will prolong the
suffering that the person is apparently experiencing or will put the person at risk of sustaining
serious bodily harm. 1996, c. 2, Sched. A, s. 25 (2).
Emergency treatment without consent: capable person
(3) Despite section 10, a treatment may be administered without consent to a person who is
apparently capable with respect to the treatment, if, in the opinion of the health practitioner
proposing the treatment,
(a) there is an emergency;
(b) the communication required in order for the person to give or refuse consent to the treatment
cannot take place because of a language barrier or because the person has a disability that
prevents the communication from taking place;
(c) steps that are reasonable in the circumstances have been taken to find a practical means of
enabling the communication to take place, but no such means has been found;
(d) the delay required to find a practical means of enabling the communication to take place will
prolong the suffering that the person is apparently experiencing or will put the person at risk
of sustaining serious bodily harm; and
(e) there is no reason to believe that the person does not want the treatment. 1996, c. 2, Sched. A,
s. 25 (3).
Examination without consent
(4) Despite section 10, an examination or diagnostic procedure that constitutes treatment may be
conducted by a health practitioner without consent if,
(a) the examination or diagnostic procedure is reasonably necessary in order to determine whether
there is an emergency; and
(b) in the opinion of the health practitioner,

(i) the person is incapable with respect to the examination or diagnostic procedure, or
(ii) clauses (3) (b) and (c) apply to the examination or diagnostic procedure. 1996, c. 2,
Sched. A, s. 25 (4).
Record
(5) After administering a treatment in reliance on subsection (2) or (3), the health practitioner
shall promptly note in the person’s record the opinions held by the health practitioner that are
required by the subsection on which he or she relied. 1996, c. 2, Sched. A, s. 25 (5).
Continuing treatment
(6) Treatment under subsection (2) may be continued only for as long as is reasonably necessary
to find the incapable person’s substitute decision-maker and to obtain from him or her a consent, or
refusal of consent, to the continuation of the treatment. 1996, c. 2, Sched. A, s. 25 (6).
Same
(7) Treatment under subsection (3) may be continued only for as long as is reasonably necessary
to find a practical means of enabling the communication to take place so that the person can give or
refuse consent to the continuation of the treatment. 1996, c. 2, Sched. A, s. 25 (7).
Search
(8) When a treatment is begun under subsection (2) or (3), the health practitioner shall ensure that
reasonable efforts are made for the purpose of finding the substitute decision-maker, or a means of
enabling the communication to take place, as the case may be. 1996, c. 2, Sched. A, s. 25 (8).
Return of capacity
(9) If, after a treatment is begun under subsection (2), the person becomes capable with respect to
the treatment in the opinion of the health practitioner, the person’s own decision to give or refuse
consent to the continuation of the treatment governs. 1996, c. 2, Sched. A, s. 25 (9).
No treatment contrary to wishes
26. A health practitioner shall not administer a treatment under section 25 if the health
practitioner has reasonable grounds to believe that the person, while capable and after attaining 16
years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment.
1996, c. 2, Sched. A, s. 26.
Emergency treatment despite refusal
27. If consent to a treatment is refused on an incapable person’s behalf by his or her substitute
decision-maker, the treatment may be administered despite the refusal if, in the opinion of the health
practitioner proposing the treatment,
(a) there is an emergency; and
(b) the substitute decision-maker did not comply with section 21. 1996, c. 2, Sched. A, s. 27.
28. The authority to administer a treatment to a person under section 25 or 27 includes authority
to have the person admitted to a hospital or psychiatric facility for the purpose of the treatment,
unless the person objects and the treatment is primarily treatment of a mental disorder. 1996, c. 2,
Sched. A, s. 28.
PROTECTION FROM LIABILITY
Protection from liability
Apparently valid consent to treatment
29. (1) If a treatment is administered to a person with a consent that a health practitioner
believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the
health practitioner is not liable for administering the treatment without consent. 1996, c. 2, Sched.
A, s. 29 (1).
Apparently valid refusal of treatment
(2) If a treatment is not administered to a person because of a refusal that a health practitioner
believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the

health practitioner is not liable for failing to administer the treatment. 1996, c. 2, Sched. A,
s. 29 (2).
Apparently valid consent to withholding or withdrawal
(3) If a treatment is withheld or withdrawn in accordance with a plan of treatment and with a
consent to the plan of treatment that a health practitioner believes, on reasonable grounds and in
good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for
withholding or withdrawing the treatment. 1996, c. 2, Sched. A, s. 29 (3).
Emergency: treatment administered
(4) A health practitioner who, in good faith, administers a treatment to a person under section 25
or 27 is not liable for administering the treatment without consent. 1996, c. 2, Sched. A, s. 29 (4).
Emergency: treatment not administered
(5) A health practitioner who, in good faith, refrains from administering a treatment in
accordance with section 26 is not liable for failing to administer the treatment. 1996, c. 2, Sched. A,
s. 29 (5).
Reliance on assertion
(6) If a person who gives or refuses consent to a treatment on an incapable person’s behalf asserts
that he or she,
(a) is a person described in subsection 20 (1) or clause 24 (2) (a) or (b) or an attorney for personal
care described in clause 32 (2) (b);
(b) meets the requirement of clause 20 (2) (b) or (c); or
(c) holds the opinions required under subsection 20 (4),
a health practitioner is entitled to rely on the accuracy of the assertion, unless it is not reasonable to
do so in the circumstances. 1996, c. 2, Sched. A, s. 29 (6).
Person making decision on another’s behalf
30. A person who gives or refuses consent to a treatment on another person’s behalf, acting in
good faith and in accordance with this Act, is not liable for giving or refusing consent. 1996, c. 2,
Sched. A, s. 30.
31. (1) Sections 29 and 30, except subsection 29 (4), apply, with necessary modifications, to
admission of the incapable person to a hospital, psychiatric facility or other health facility referred
to in section 24, for the purpose of treatment. 1996, c. 2, Sched. A, s. 31 (1).
Same
(2) A health practitioner who, in good faith, has a person admitted to a hospital or psychiatric
facility under section 28 is not liable for having the person admitted without consent. 1996, c. 2,
Sched. A, s. 31 (2).

Malette v Shulman
(1990), 72 OR (2d) 417
Court of Appeal
The judgment of the court was delivered by

ROBINS J.A.:-- The question to be decided in this appeal is whether a doctor is liable in law for
administering blood transfusions to an unconscious patient in a potentially life-threatening situation
when the patient is carrying a card stating that she is a Jehovah's Witness and, as a matter of
religious belief, rejects blood transfusions under any circumstances.
I
In the early afternoon of June 30, 1979, Mrs. Georgette Malette, then age 57, was rushed,
unconscious, by ambulance to the Kirkland and District Hospital in Kirkland Lake, Ontario. She
had been in an accident. The car in which she was a passenger, driven by her husband, had collided
head-on with a truck. Her husband had been killed. She suffered serious injuries.
On arrival at the hospital, she was attended by Dr. David L. Shulman, a family physician
practising in Kirkland Lake who served two or three shifts a week in the emergency department of
the hospital and who was on duty at the time. Dr. Shulman's initial examination of Mrs. Malette
showed, among other things, that she had severe head and face injuries and was bleeding profusely.
The doctor concluded that she was suffering from incipient shock by reason of blood loss, and
ordered that she be given intravenous glucose followed immediately by Ringer's Lactate. The
administration of a volume expander, such as Ringer's Lactate, is standard medical procedure in
cases of this nature. If the patient does not respond with significantly increased blood pressure,
transfusions of blood are then administered to carry essential oxygen to tissues and to remove waste
products and prevent damage to vital organs.
At about this time, a nurse discovered a card in Mrs. Malette's purse which identified her as a
Jehovah's Witness and in which she requested, on the basis of her religious convictions, that she be
given no blood transfusions under any circumstances. The card, which was not dated or witnessed,
was printed in French and signed by Mrs. Malette. Translated into English, it read:
NO BLOOD TRANSFUSION!
(1) As one of Jehovah's Witnesses with firm religious convictions, I request that no blood
or blood products be administered to me under any circumstances. I fully realize the
implications of this position, but I have resolutely decided to obey the Bible command:
"Keep abstaining ... from blood." (Acts 15:28, 29). However, I have no religious
objection to use the nonblood alternatives, such as Dextran, Haemaccel, PVP, Ringer's
Lactate or saline solution.
Dr. Shulman was promptly advised of the existence of this card and its contents.
Mrs. Malette was next examined by a surgeon on duty in the hospital. He concluded, as had Dr.
Shulman, that, to avoid irreversible shock, it was vital to maintain her blood volume. He had Mrs.

Malette transferred to the X-ray department for X-rays of her skull, pelvis and chest. However,
before the X-rays could be satisfactorily completed, Mrs. Malette's condition deteriorated. Her
blood pressure dropped markedly, her respiration became increasingly distressed, and her level of
consciousness dropped. She continued to bleed profusely and could be said to be critically ill.
At this stage, Dr. Shulman decided that Mrs. Malette's condition had deteriorated to the point that
transfusions were necessary to replace her lost blood and to preserve her life and health. Having
made that decision, he personally administered transfusions to her, in spite of the Jehovah's Witness
card, while she was in the X-ray department and after she was transferred to the intensive care unit.
Dr. Shulman was clearly aware of the religious objection to blood manifested in the card carried by
Mrs. Malette and the instruction that "NO BLOOD TRANSFUSION!" be given under any
circumstances. He accepted full responsibility then, as he does now, for the decision to administer
the transfusions.
Some three hours after the transfusions were commenced, Mrs. Malette's daughter, Celine
Bisson, who had driven to Kirkland Lake from Timmins, arrived at the hospital accompanied by her
husband and a local church elder. She strongly objected to her mother being given blood. She
informed Dr. Shulman and some of the other defendants that both she and her mother were
Jehovah's Witnesses, that a tenet of their faith forbids blood transfusions, and that she knew her
mother would not want blood transfusions. Notwithstanding Dr. Shulman's opinion as to the
medical necessity of the transfusions, Mrs. Bisson remained adamantly opposed to them. She signed
a document specifically prohibiting blood transfusions and a release of liability. Dr. Shulman
refused to follow her instructions. Since the blood transfusions were, in his judgment, medically
necessary in this potentially life-threatening situation, he believed it his professional responsibility
as the doctor in charge to ensure that his patient received the transfusions. Furthermore, he was not
satisfied that the card signed by Mrs. Malette expressed her current instructions because, on the
information he then had, he did not know whether she might have changed her religious beliefs
before the accident; whether the card may have been signed because of family or peer pressure;
whether at the time she signed the card she was fully informed of the risks of refusal of blood
transfusions; or whether, if conscious, she might have changed her mind in the face of medical
advice as to her perhaps imminent but avoidable death.
As matters developed, by about midnight Mrs. Malette's condition had stabilized sufficiently to
permit her to be transferred early the next morning by air ambulance to Toronto General Hospital
where she received no further blood transfusions. She was discharged on August 11, 1979. Happily,
she made a very good recovery from her injuries.
II
In June, 1980, Mrs. Malette brought this action against Dr. Shulman, the hospital, its executive
director and four nurses, alleging, in the main, that the administration of blood transfusions in the
circumstances of her case constituted negligence and assault and battery and subjected her to
religious discrimination. The trial came on before Donnelly J. who, in reasons now reported at 63
O.R. (2d) 243, 47 D.L.R. (4th) 18, 43 C.C.L.T. 62, dismissed the action against all defendants save
Dr. Shulman. With respect to Dr. Shulman, the learned judge concluded that the Jehovah's Witness
card validly restricted his right to treat the patient, and there was no rationally founded basis upon
which the doctor could ignore that restriction. Hence, his administration of blood transfusions
constituted a battery on the plaintiff. The judge awarded her damages of $20,000 but declined to
make any award of costs.

Dr. Shulman now appeals to this court from that judgment. Mrs. Malette cross-appeals the judge's
dismissal of the action against the hospital and his order with respect to costs.
In his reasons for judgment, Donnelly J. fully and carefully set out the facts of this case as he
found them. I see no need to restate those facts in any greater detail than I already have. Nor do I
see any need to repeat the arguments that were advanced in both the appeal and the cross-appeal by
which the parties seek to impugn the judge's findings in certain particulars. I think it sufficient to
say that I am of the opinion that the judge's factual conclusions are unassailable. His findings were
properly made within his province as the trier of fact and are supported by the evidence. It is not
this court's function to weigh conflicting evidence or to determine the relative effect of
contradictory medical opinions with respect either to bloodless medicine or to the benefits and risks
of blood transfusions. The legal issues to be determined in this appeal must be dealt with on the
basis of the findings made at trial.
I should perhaps underscore the fact that Dr. Shulman was not found liable for any negligence in
his treatment of Mrs. Malette. The judge held that he had acted "promptly, professionally and was
well-motivated throughout" and that his management of the case had been "carried out in a
competent, careful and conscientious manner" in accordance with the requisite standard of care. His
decision to administer blood in the circumstances confronting him was found to be an honest
exercise of his professional judgment which did not delay Mrs. Malette's recovery, endanger her life
or cause her any bodily harm. Indeed, the judge concluded that the doctor's treatment of Mrs.
Malette "may well have been responsible for saving her life".
Liability was imposed in this case on the basis that the doctor tortiously violated his patient's
rights over her own body by acting contrary to the Jehovah's Witness card and administering blood
transfusions that were not authorized. His honest and even justifiable belief that the treatment was
medically essential did not serve to relieve him from liability for the battery resulting from his
intentional and unpermitted conduct. As Donnelly J. put it at p. 268 O.R., p. 43 D.L.R.:
The card itself presents a clear, concise statement, essentially stating, "As a Jehovah's
Witness, I refuse blood". That message is unqualified. It does not exempt life
threatening perils. On the face of the card, its message is seen to be rooted in religious
conviction. Its obvious purpose as a card is as protection to speak in circumstances
where the card carrier cannot (presumably because of illness or injury). There is no
basis in evidence to indicate that the card may not represent the current intention and
instruction of the card holder.
I, therefore, find that the card is a written declaration of a valid position which the card
carrier may legitimately take in imposing a written restriction on her contract with the
doctor. Dr. Shulman's doubt about the validity of the card, although honest, was not
rationally founded on the evidence before him. Accordingly, but for the issue of
informed refusal, there was no rationally founded basis for the doctor to ignore that
restriction.
On the issue of informed refusal, Donnelly J. said at pp. 272-3 O.R., pp. 47-8 D.L.R.:

The right to refuse treatment is an inherent component of the supremacy of the patient's
right over his own body. That right to refuse treatment is not premised on an
understanding of the risks of refusal.
However sacred life may be, fair social comment admits that certain aspects of life are
properly held to be more important than life itself. Such proud and honourable
motivations are long entrenched in society, whether it be for patriotism in war, duty by
law enforcement officers, protection of the life of a spouse, son or daughter, death
before dishonour, death before loss of liberty, or religious martyrdom. Refusal of
medical treatment on religious grounds is such a value.
.....
If objection to treatment is on a religious basis, this does not permit the scrutiny of
"reasonableness" which is a transitory standard dependent on the norms of the day. If
the objection has its basis in religion, it is more apt to crystallize in life threatening
situations.
The doctrine of informed consent does not extend to informed refusal. The written
direction contained in the card was not properly disregarded on the basis that
circumstances prohibited verification of that decision as an informed choice. The card
constituted a valid restriction of Dr. Shulman's right to treat the patient and the
administration of blood by Dr. Shulman did constitute battery.
III
What then is the legal effect, if any, of the Jehovah's Witness card carried by Mrs. Malette? Was
the doctor bound to honour the instructions of his unconscious patient or, given the emergency and
his inability to obtain conscious instructions from his patient, was he entitled to disregard the card
and act according to his best medical judgment?
To answer these questions and determine the effect to be given to the Jehovah's Witness card, it is
first necessary to ascertain what rights a competent patient has to accept or reject medical treatment
and to appreciate the nature and extent of those rights.
The right of a person to control his or her own body is a concept that has long been recognized at
common law. The tort of battery has traditionally protected the interest in bodily security from
unwanted physical interference. Basically, any intentional nonconsensual touching which is harmful
or offensive to a person's reasonable sense of dignity is actionable. Of course, a person may choose
to waive this protection and consent to the intentional invasion of this interest, in which case an
action for battery will not be maintainable. No special exceptions are made for medical care, other
than in emergency situations, and the general rules governing actions for battery are applicable to
the doctor-patient relationship. Thus, as a matter of common law, a medical intervention in which a
doctor touches the body of a patient would constitute a battery if the patient did not consent to the
intervention. Patients have the decisive role in the medical decision-making process. Their right of
self-determination is recognized and protected by the law. As Justice Cardozo proclaimed in his
classic statement: "Every human being of adult years and sound mind has a right to determine what

shall be done with his own body; and a surgeon who performs an operation without his patient's
consent commits an assault, for which he is liable in damages": Schloendoff v. Society of New
York Hospital, 211 N.Y. 125 (1914). See also, Videto v. Kennedy (1981), 33 O.R. (2d) 497, 125
D.L.R. (3d) 127, 17 C.C.L.T. 307 (C.A.); Linden, Canadian Tort Law, 4th ed. (1988), at pp. 40-3
and p. 59 et seq.; Prosser & Keeton, The Law of Torts, 5th ed. (1984), at pp. 39-42; and Fleming,
The Law of Torts, 7th ed. (1987), at pp. 23-4.
The doctrine of informed consent has developed in the law as the primary means of protecting a
patient's right to control his or her medical treatment. Under the doctrine, no medical procedure may
be undertaken without the patient's consent obtained after the patient has been provided with
sufficient information to evaluate the risks and benefits of the proposed treatment and other
available options. The doctrine presupposes the patient's capacity to make a subjective treatment
decision based on her understanding of the necessary medical facts provided by the doctor and on
her assessment of her own personal circumstances. A doctor who performs a medical procedure
without having first furnished the patient with the information needed to obtain an informed consent
will have infringed the patient's right to control the course of her medical care, and will be liable in
battery even though the procedure was performed with a high degree of skill and actually benefitted
the patient.
The right of self-determination which underlies the doctrine of informed consent also obviously
encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject
a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision
may entail risks as serious as death and may appear mistaken in the eyes of the medical profession
or of the community. Regardless of the doctor's opinion, it is the patient who has the final say on
whether to undergo the treatment. The patient is free to decide, for instance, not to be operated on or
not to undergo therapy or, by the same token, not to have a blood transfusion. If a doctor were to
proceed in the face of a decision to reject the treatment, he would be civilly liable for his
unauthorized conduct notwithstanding his justifiable belief that what he did was necessary to
preserve the patient's life or health. The doctrine of informed consent is plainly intended to ensure
the freedom of individuals to make choices concerning their medical care. For this freedom to be
meaningful, people must have the right to make choices that accord with their own values
regardless of how unwise or foolish those choices may appear to others: see generally, Prosser &
Keeton, op.cit., p. 112 et seq.; Harper, James & Gray, The Law of Torts, 2nd ed. (1986), c. III;
Linden, op.cit., p. 64 et seq.; and Reibl v. Hughes (1980), 114 D.L.R. (3d) 1, [1980] 2 S.C.R. 880,
14 C.C.L.T. 1.
IV
The emergency situation is an exception to the general rule requiring a patient's prior consent.
When immediate medical treatment is necessary to save the life or preserve the health of a person
who, by reason of unconsciousness or extreme illness, is incapable of either giving or withholding
consent, the doctor may proceed without the patient's consent. The delivery of medical services is
rendered lawful in such circumstances either on the rationale that the doctor has implied consent
from the patient to give emergency aid or, more accurately in my view, on the rationale that the
doctor is privileged by reason of necessity in giving the aid and is not to be held liable for so doing.
On either basis, in an emergency the law sets aside the requirement of consent on the assumption
that the patient, as a reasonable person, would want emergency aid to be rendered if she were
capable of giving instructions. As Prosser & Keeton, op.cit., at pp. 117-18 state:

The touching of another that would ordinarily be a battery in the absence of the consent
of either the person touched or his legal agent can sometimes be justified in an
emergency. Thus, it has often been asserted that a physician or other provider of health
care has implied consent to deliver medical services, including surgical procedures, to a
patient in an emergency. But such lawful action is more satisfactorily explained as a
privilege. There are several requirements: (a) the patient must be unconscious or
without capacity to make a decision, while no one legally authorized to act as agent for
the patient is available; (b) time must be of the essence, in the sense that it must
reasonably appear that delay until such time as an effective consent could be obtained
would subject the patient to a risk of a serious bodily injury or death which prompt
action would avoid; and (3) under the circumstances, a reasonable person would
consent, and the probabilities are that the patient, would consent.
See also Marshall v. Curry, [1933] 3 D.L.R. 260, 60 C.C.C. 136 (N.S.S.C.); Parmley v. Parmley,
[1945] 4 D.L.R. 81, [1945] S.C.R. 635; Mulloy v. Hop Sang, [1935] 1 W.W.R. 714 (Alta. C.A.);
Picard, Legal Liability of Doctors and Hospitals in Canada, 2nd ed. (1985), at p. 45; Restatement of
the Law of Torts, Second, s. 892 D (1979); and s. 25 of O. Reg. 518/88 under the Public Hospitals
Act, R.S.O. 1980, c. 410.
On the facts of the present case, Dr. Shulman was clearly faced with an emergency. He had an
unconscious, critically ill patient on his hands who, in his opinion, needed blood transfusions to
save her life or preserve her health. If there were no Jehovah's Witness card he undoubtedly would
have been entitled to administer blood transfusions as part of the emergency treatment and could not
have been held liable for so doing. In those circumstances he would have had no indication that the
transfusions would have been refused had the patient then been able to make her wishes known and,
accordingly, no reason to expect that, as a reasonable person, she would not consent to the
transfusions.
However, to change the facts, if Mrs. Malette, before passing into unconsciousness, had expressly
instructed Dr. Shulman, in terms comparable to those set forth on the card, that her religious
convictions as a Jehovah's Witness were such that she was not to be given a blood transfusion under
any circumstances and that she fully realized the implications of this position, the doctor would
have been confronted with an obviously different situation. Here, the patient, anticipating an
emergency in which she might be unable to make decisions about her health care contemporaneous
with the emergency, has given explicit instructions that blood transfusions constitute an
unacceptable medical intervention and are not to be administered to her. Once the emergency arises,
is the doctor none the less entitled to administer transfusions on the basis of his honest belief that
they are needed to save his patient's life?
The answer, in my opinion, is clearly no. A doctor is not free to disregard a patient's advance
instructions any more than he would be free to disregard instructions given at the time of the
emergency. The law does not prohibit a patient from withholding consent to emergency medical
treatment, nor does the law prohibit a doctor from following his patient's instructions. While the law
may disregard the absence of consent in limited emergency circumstances, it otherwise supports the
right of competent adults to make decisions concerning their own health care by imposing civil
liability on those who perform medical treatment without consent.

The patient's decision to refuse blood in the situation I have posed was made prior to and in
anticipation of the emergency. While the doctor would have had the opportunity to dissuade her on
the basis of his medical advice, her refusal to accept his advice or her unwillingness to discuss or
consider the subject would not relieve him of his obligation to follow her instructions. The
principles of self-determination and individual autonomy compel the conclusion that the patient
may reject blood transfusions even if harmful consequences may result and even if the decision is
generally regarded as foolhardy. Her decision in this instance would be operative after she lapsed
into unconsciousness, and the doctor's conduct would be unauthorized. To transfuse a Jehovah's
Witness in the face of her explicit instructions to the contrary would, in my opinion, violate her
right to control her own body and show disrespect for the religious values by which she has chosen
to live her life: see In re Estate of Brooks, 205 N.E. 2d 435 (1965, Ill.); and Randolph v. City of
New York an unreported judgment of the Supreme Court of New York released July 12, 1984,
Index No. 17598/75; reversed 501 N.Y.S. 2d 837 (1986); varied 514 N.Y.S. 2d 705 (1987).
V
The distinguishing feature of the present case -- and the one that makes this a case of first
impression -- is, of course, the Jehovah's Witness card on the person of the unconscious patient.
What then is the effect of the Jehovah's Witness card?
In the appellant's submission, the card is of no effect and, as a consequence, can play no role in
determining the doctor's duty toward his patient in the emergency situation existing in this case. The
trial judge, the appellant argues, erred in holding both that the Jehovah's Witness card validly
restricted the doctor's right to administer the blood transfusions, and that there was no rationally
founded basis for ignoring the card. The argument proceeds on the basis, first, that, as a matter of
principle, a card of this nature could not operate in these circumstances to prohibit the doctor from
providing emergency health care and, second, that in any event, as a matter of evidence, there was
good reason to doubt the card's validity.
The appellant acknowledges that a conscious rational patient is entitled to refuse any medical
treatment and that a doctor must comply with that refusal no matter how ill-advised he may believe
it to be. He contends, however, to quote from his factum, that "a patient refusing treatment regarded
by a doctor as being medically necessary has a right to be advised by the doctor, and the doctor has
a concomitant duty to advise the patient of the risks associated with that refusal". Here, because of
the patient's unconsciousness, the doctor had no opportunity to advise her of the specific risks
involved in refusing the blood transfusions that he regarded as medically necessary. In those
circumstances, the appellant argues, it was not possible for the doctor to obtain, or for the patient to
give, an "informed refusal". In the absence of such a refusal, the argument proceeds, Dr. Shulman
was under a legal and ethical duty to treat this patient as he would any other emergency case and
provide the treatment that, in his medical judgment, was needed to preserve her health and life. In
short, the argument concludes, Mrs. Malette's religiously motivated instructions, prepared in
contemplation of an emergency, directing that she not be given blood transfusions in any
circumstances, were of no force or effect and could be ignored with impunity.
In challenging the trial judge's finding that there was no rationally founded evidentiary basis for
doubting the validity of the card and ignoring the restriction contained in it, the appellant puts forth
a number of questions which he claims compel the conclusion that he was under no duty to comply
with these instructions. He argues that it could properly be doubted whether the card constituted a
valid statement of Mrs. Malette's wishes in this emergency because it was unknown, for instance,

whether she knew the card was still in her purse; whether she was still a Jehovah's Witness or how
devout a Jehovah's Witness she was; what information she had about the risks associated with the
refusal of blood transfusion when she signed the card; or whether, if she were conscious, she would
refuse blood transfusions after the doctor had an opportunity to advise her of the risks associated
with the refusal.
With deference to Mr. Royce's exceedingly able argument on behalf of the appellant, I am unable
to accept the conclusions advocated by him. I do not agree, as his argument would have it, that the
Jehovah's Witness card can be no more than a meaningless piece of paper. I share the trial judge's
view that, in the circumstances of this case, the instructions in the Jehovah's Witness card imposed a
valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded
blood transfusions.
I should emphasize that in deciding this case the court is not called upon to consider the law that
may be applicable to the many situations in which objection may be taken to the use or continued
use of medical treatment to save or prolong a patient's life. The court's role, especially in a matter as
sensitive as this, is limited to resolving the issues raised by the facts presented in this particular
case. On these facts, we are not concerned with a patient who has been diagnosed as terminally or
incurably ill who seeks by way of advance directive or "living will" to reject medical treatment so
that she may die with dignity; neither are we concerned with a patient in an irreversible vegetative
state whose family seeks to withdraw medical treatment in order to end her life; nor is this a case in
which an otherwise healthy patient wishes for some reason or other to terminate her life. There is no
element of suicide or euthanasia in this case.
Our concern here is with a patient who has chosen in the only way possible to notify doctors and
other providers of health care, should she be unconscious or otherwise unable to convey her wishes,
that she does not consent to blood transfusions. Her written statement is plainly intended to express
her wishes when she is unable to speak for herself. There is no suggestion that she wished to die.
Her rejection of blood transfusions is based on the firm belief held by Jehovah's Witnesses, founded
on their interpretation of the Scriptures, that the acceptance of blood will result in a forfeiture of
their opportunity for resurrection and eternal salvation. The card evidences that "as one of Jehovah's
Witnesses with firm religious convictions" Mrs. Malette is not to be administered blood transfusions
"under any circumstances"; that, while she "fully realize[s] the implications of this position", she
has "resolutely decided to obey the Bible command"; and that she has no religious objection to
"nonblood alternatives". In signing and carrying this card Mrs. Malette has made manifest her
determination to abide by this fundamental tenet of her faith and refuse blood regardless of the
consequences. If her refusal involves a risk of death, then, according to her belief, her death would
be necessary to ensure her spiritual life.
Accepting for the moment that there is no reason to doubt that the card validly expressed Mrs.
Malette's desire to withhold consent to blood transfusions, why should her wishes not be respected?
Why should she be transfused against her will? The appellant's answer, in essence, is that the card
cannot be effective when the doctor is unable to provide the patient with the information she would
need before making a decision to withhold consent in this specific emergency situation. In the
absence of an informed refusal, the appellant submits that Mrs. Malette's right to protection against
unwanted infringements of her bodily integrity must give way to countervailing societal interests
which limit a person's right to refuse medical treatment. The appellant identifies two such interests
as applicable to the unconscious patient in the present situation: first, the interest of the state in

preserving life and, second, the interest of the state in safeguarding the integrity of the medical
profession.
VI
The state undoubtedly has a strong interest in protecting and preserving the lives and health of its
citizens. There clearly are circumstances where this interest may override the individual's right to
self-determination. For example, the state may in certain cases require that citizens submit to
medical procedures in order to eliminate a health threat to the community or it may prohibit citizens
from engaging in activities which are inherently dangerous to their lives. But this interest does not
prevent a competent adult from refusing life-preserving medical treatment in general or blood
transfusions in particular.
The state's interest in preserving the life or health of a competent patient must generally give way
to the patient's stronger interest in directing the course of her own life. As indicated earlier, there is
no law prohibiting a patient from declining necessary treatment or prohibiting a doctor from
honouring the patient's decision. To the extent that the law reflects the state's interest, it supports the
right of individuals to make their own decisions. By imposing civil liability on those who perform
medical treatment without consent even though the treatment may be beneficial, the law serves to
maximize individual freedom of choice. Recognition of the right to reject medical treatment cannot,
in my opinion, be said to depreciate the interest of the state in life or in the sanctity of life.
Individual free choice and self-determination are themselves fundamental constituents of life. To
deny individuals freedom of choice with respect to their health care can only lessen, and not
enhance, the value of life. This state interest, in my opinion, cannot properly be invoked to prohibit
Mrs. Malette from choosing for herself whether or not to undergo blood transfusions.
Safeguarding the integrity of the medical profession is patently a legitimate state interest worthy
of protection. However, I do not agree that this interest can serve to limit a patient's right to refuse
blood transfusions. I recognize, of course, that the choice between violating a patient's private
convictions and accepting her decision is hardly an easy one for members of a profession dedicated
to aiding the injured and preserving life. The patient's right to determine her own medical treatment
is, however, paramount to what might otherwise be the doctor's obligation to provide needed
medical care. The doctor is bound in law by the patient's choice even though that choice may be
contrary to the mandates of his own conscience and professional judgment. If patient choice were
subservient to conscientious medical judgment, the right of the patient to determine her own
treatment, and the doctrine of informed consent, would be rendered meaningless. Recognition of a
Jehovah's Witness' right to refuse blood transfusions cannot, in my opinion, be seen as threatening
the integrity of the medical profession or the state's interest in protecting the same.
In sum, it is my view that the principal interest asserted by Mrs. Malette in this case -- the interest
in the freedom to reject, or refuse to consent to, intrusions of her bodily integrity -- outweighs the
interest of the state in the preservation of life and health and the protection of the integrity of the
medical profession. While the right to decline medical treatment is not absolute or unqualified,
those state interests are not in themselves sufficiently compelling to justify forcing a patient to
submit to nonconsensual invasions of her person. The interest of the state in protecting innocent
third parties and preventing suicide are, I might note, not applicable to the present circumstances.
VII

The unique considerations in this case arise by virtue of Mrs. Malette's aim to articulate through
her Jehovah's Witness card her wish not to be given blood transfusions in any circumstances. In
considering the effect to be given the card, it must, of course, be borne in mind that no previous
doctor-patient relationship existed between Dr. Shulman and Mrs. Malette. The doctor was acting
here in an emergency in which he clearly did not have, nor could he obtain, her consent to his
intervention. His intervention can be supported only by resort to the emergency doctrine which I
outlined in Part IV of these reasons.
Under that doctrine, the doctor could administer blood transfusions without incurring liability,
even though the patient had not consented, if he had no reason to believe that the patient, if she had
the opportunity to consent, would decline. In those circumstances, it could be assumed that the
patient, as a reasonable person, would consent to aid being rendered if she were able to give
instructions. The doctor's authority to make decisions for his patient is necessarily a limited
authority. If he knows that the patient has refused to consent to the proposed procedure, he is not
empowered to overrule the patient's decision by substituting his decision for hers even though he,
and most others, may think hers a foolish or unreasonable decision. In these circumstances the
assumption upon which consent is set aside in an emergency could no longer be made. The doctor
has no authority to intervene in the face of a patient's declared wishes to the contrary. Should he
none the less proceed, he would be liable in battery for tortiously invading the patient's bodily
integrity notwithstanding that what he did may be considered beneficial to the patient.
In this case, the patient, in effect, issued standing orders that she was to be given "NO BLOOD
TRANSFUSION!" in any circumstances. She gave notice to the doctor and the hospital, in the only
practical way open to her, of her firm religious convictions as a Jehovah's Witness and her resolve
to abstain from blood. Her instructions plainly contemplated the situation in which she found herself
as a result of her unfortunate accident. In light of those instructions, assuming their validity, she
cannot be said to have consented to blood transfusions in this emergency. Nor can the doctor be said
to have proceeded on the reasonable belief that the patient would have consented had she been in a
condition to do so. Given his awareness of her instructions and his understanding that blood
transfusions were anathema to her on religious grounds, by what authority could he administer the
transfusions? Put another way, if the card evidences the patient's intent to withhold consent, can the
doctor none the less ignore the card and subject the patient to a procedure that is manifestly contrary
to her express wishes and unacceptable to her religious beliefs?
At issue here is the freedom of the patient as an individual to exercise her right to refuse
treatment and accept the consequences of her own decision. Competent adults, as I have sought to
demonstrate, are generally at liberty to refuse medical treatment even at the risk of death. The right
to determine what shall be done with one's own body is a fundamental right in our society. The
concepts inherent in this right are the bedrock upon which the principles of self-determination and
individual autonomy are based. Free individual choice in matters affecting this right should, in my
opinion, be accorded very high priority. I view the issues in this case from that perspective.
VIII
The appellant's basic position, reduced to its essentials, is that unless the doctor can obtain the
patient's informed refusal of blood transfusions he need not follow the instructions provided in the
Jehovah's Witness card. Nothing short of a conscious, contemporaneous decision by the patient to

refuse blood transfusions -- a decision made after the patient has been fully informed by the doctor
of the risks of refusing blood in the specific circumstances facing her -- will suffice, the appellant
contends, to eliminate the doctor's authority to administer emergency treatment or, by the same
token, to relieve the doctor of his obligation to treat this emergency patient as he would any other.
In my opinion, it is unnecessary to determine in this case whether there is a doctrine of informed
refusal as distinct from the doctrine of informed consent. In the particular doctor-patient
relationship which arose in these emergency circumstances it is apparent that the doctor could not
inform the patient of the risks involved in her prior decision to refuse consent to blood transfusions
in any circumstances. It is apparent also that her decision did not emerge out of a doctor-patient
relationship. Whatever the doctor's obligation to provide the information needed to make an
informed choice may be in other doctor-patient relationships, he cannot be in breach of any such
duty in the circumstances of this relationship. The patient manifestly made the decision on the basis
of her religious convictions. It is not for the doctor to second-guess the reasonableness of the
decision or to pass judgment on the religious principles which motivated it. The fact that he had no
opportunity to offer medical advice cannot nullify instructions plainly intended to govern in
circumstances where such advice is not possible. Unless the doctor had reason to believe that the
instructions in the Jehovah's Witness card were not valid instructions in the sense that they did not
truly represent the patient's wishes, in my opinion he was obliged to honour them. He has no
authorization under the emergency doctrine to override the patient's wishes. In my opinion, she was
entitled to reject in advance of an emergency a medical procedure inimical to her religious values.
The remaining question is whether the doctor factually had reason to believe the instructions
were not valid. On this question, the trial judge held that the doctor's "doubt about the validity of the
card ... was not rationally founded on the evidence before him". I agree with that conclusion. On my
reading of the record, there was no reason not to regard this card as a valid advance directive. Its
instructions were clear, precise and unequivocal, and manifested a calculated decision to reject a
procedure offensive to the patient's religious convictions. The instructions excluded from potential
emergency treatment a single medical procedure well known to the lay public and within its
comprehension. The religious belief of Jehovah's Witnesses with respect to blood transfusions was
known to the doctor and, indeed, is a matter of common knowledge to providers of health care. The
card undoubtedly belonged to and was signed by Mrs. Malette; its authenticity was not questioned
by anyone at the hospital and, realistically, could not have been questioned. The trial judge found,
"[t]here [was] no basis in evidence to indicate that the card [did] not represent the current intention
and instruction of the card holder" [p. 268 O.R., p. 43 D.L.R.]. There was nothing to give credence
to or provide support for the speculative inferences implicit in questions as to the current strength of
Mrs. Malette's religious beliefs or as to the circumstances under which the card was signed or her
state of mind at the time. The fact that a card of this nature was carried by her can itself be taken as
verification of her continuing and current resolve to reject blood "fully realiz[ing] the implications
of this position".
In short, the card on its face set forth unqualified instructions applicable to the circumstances
presented by this emergency. In the absence of any evidence to the contrary, those instructions
should be taken as validly representing the patient's wish not to be transfused. If, of course, there
were evidence to the contrary -- evidence which cast doubt on whether the card was a true
expression of the patient's wishes -- the doctor, in my opinion, would be entitled to proceed as he
would in the usual emergency case. In this case, however, there was no such contradictory evidence.
Accordingly, I am of the view that the card had the effect of validly restricting the treatment that

could be provided to Mrs. Malette and constituted the doctor's administration of the transfusions a
battery.
With respect to Mrs. Malette's daughter, I would treat her role in this matter as no more than
confirmatory of her mother's wishes. The decision in this case does not turn on whether the doctor
failed to follow the daughter's instructions. Therefore, it is unnecessary, and in my view would be
inadvisable, to consider what effect, if any, should be given to a substitute decision, purportedly
made by a relative on behalf of the patient, to reject medical treatment in these circumstances.
One further point should be mentioned. The appellant argues that to uphold the trial decision
places a doctor on the horns of a dilemma, in that, on the one hand, if the doctor administers blood
in this situation and saves the patient's life, the patient may hold him liable in battery while, on the
other hand, if the doctor follows the patient's instructions and, as a consequence, the patient dies, the
doctor may face an action by dependants alleging that, notwithstanding the card, the deceased
would, if conscious, have accepted blood in the face of imminent death and the doctor was
negligent in failing to administer the transfusions. In my view, that result cannot conceivably
follow. The doctor cannot be held to have violated either his legal duty or professional
responsibility towards the patient or the patient's dependants when he honours the Jehovah's
Witness card and respects the patient's right to control her own body in accordance with the dictates
of her conscience. The onus is clearly on the patient. When members of the Jehovah's Witness faith
choose to carry cards intended to notify doctors and other providers of health care that they reject
blood transfusions in an emergency, they must accept the consequences of their decision. Neither
they nor their dependants can later be heard to say that the card did not reflect their true wishes. If
harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the
doctor's.
Finally, the appellant appeals the quantum of damages awarded by the trial judge. In his
submission, given the findings as to the competence of the treatment, the favourable results, the
doctor's overall exemplary conduct and his good faith in the matter, the battery was technical and
the general damages should be no more than nominal. While the submission is not without force,
damages of $20,000 cannot be said to be beyond the range of damages appropriate to a tortious
interference of this nature. The trial judge found that Mrs. Malette suffered mentally and
emotionally by reason of the battery. His assessment of general damages was clearly not affected by
any palpable or overriding error and there is therefore no basis upon which an appellate court may
interfere with the award.
IX
The cross-appeal against the hospital can be dealt with very shortly. The findings made by the
trial judge applicable to this claim, which I have not reproduced but which I have indicated are not
subject to attack, provide no basis for holding the hospital liable for the acts of the doctor. This
ground of appeal is accordingly without merit.
The cross-appeal with respect to costs must also be dismissed. This is a matter within the
discretion of the trial judge. In denying costs to the successful party for the reasons given by him,
the trial judge made no error in law or in principle. There is therefore no warrant for this court's
intervention in this matter.
X

In the result, for these reasons I would dismiss the appeal and the cross-appeal, both with costs.
Appeal and cross-appeal dismissed.

Brushett v Cowan
(1990), 69 DLR (4th) 743
Newfoundland Supreme Court - Court of Appeal
Reasons for judgment delivered by Marshall J.A., concurred in by Mahoney J.A. Separate
reasons for judgment delivered by O'Neill J.A.
MARSHALL J.A.:-- This is an appeal from a finding that a battery had been committed by an
orthopedic surgeon in the course of an operation and from findings of negligence arising out of the
post-operative care of the patient upon whom that operation was performed.
The operation and liability found to have arisen therefrom
The surgeon was Dr. J.D. Earle Cowan and the patient was Miss Sheila M. Brushett. Miss
Brushett first saw Dr. Cowan in his office on April 9, 1984, having been referred to him by her
family physician in relation to problems associated with an injury she had sustained to her right
knee and thigh.
Between then and June 20th of the same year, there followed four or five consultations, co-
incidental with investigative x-rays, a bone scan and commencement of physiotherapy. When Miss
Brushett saw Dr. Cowan again on June 20th, she was still complaining of swelling and pain in her
leg. Having observed a palpable lump on her right thigh he advised her to undergo a muscle biopsy.
He so advised because the bone scan reported certain abnormalities which it described as being due
to muscle damage in the vicinity of the right femur and the Doctor deemed it prudent to determine if
a sarcoma was present.
On June 25, 1984, she entered hospital to undergo that procedure. Prior to the operation she
signed a consent which read as follows:
1. "I Brushett Sheila of 198 Pleasant St. hereby consent to the submission of myself to the
operation or special procedure of Muscle Biopsy Right Distal Thigh the nature and
purpose of which have been explained to me by Dr. Cowan.
2. I also consent to such further or alternative measures as may be found to be necessary

during the course of the operation or special procedure and to the administration of a
general, local or other anaesthic for any of these purposes.
3. I further agree that in his discretion Dr. Cowan may make use of the assistance of other
surgeons, physicians, and hospital staff and may permit them to order or perform all or
part of the treatment, special procedure or operative procedure and they shall have the
same discretion in my treatment and in the execution of any procedure as Dr. Cowan".
After Dr. Cowan had excised a portion of the muscle, he went down to the bone and, having
observed an area that appeared abnormal, he biopsied a portion of it. Miss Brushett was discharged
from hospital that same day. No instructions were given to her at that time relating to the use of
crutches nor were any provided to her.

Two days later she visited Dr. Cowan at his clinic in the hospital for consultation and
examination. While arrangements were then made to supply her with crutches, Miss Brushett
testified no one advised her to be non-weight bearing. She also maintained she was not made aware
that a biopsy had been taken from her bone as well as her muscle and remained unaware of that fact
until so advised by a Dr. Perkins prior to operating upon her on July 7, 1984 to repair a fracture to
her leg. On the other hand, Dr. Cowan maintained that during the course of the examination on June
27, 1984, he had advised Miss Brushett of the bone biopsy and instructed her to be non-weight
bearing. In support of this contention a letter was produced bearing the same date from the Doctor
to Workers Compensation Board relative to Miss Brushett in which he stated: "Today I gave her
crutches and advised her to be non-weight bearing".
Miss Brushett testified that she used the crutches intermittently for mobilization, getting in and
out of chairs or climbing stairs. She stated that she never used them otherwise inside her home but
generally used them outside. However, she was not using them on July 6, 1984, when, in the course
of a visit to Old Perlican, she fell and broke her right leg at the site of the bone biopsy. She was
subsequently conveyed to the General Hospital in St. John's where Dr. Perkins operated upon her on
July 7th to repair the fracture.
Later Miss Brushett took action against Dr. Cowan, the General Hospital and a resident physician
at the Hospital. Her claim against Dr. Cowan was founded in battery arising from the bone biopsy
allegedly performed without her knowledge and consent and in negligence primarily related to her
post operative care.
The action against the hospital was discontinued at the commencement of the trial. The claim
against the resident physician was dismissed by the trial judge on the grounds that his alleged
negligent advice to Miss Brushett in the course of her post operative care had no causal link to the
injury. However, the learned trial judge found Dr. Cowan liable in battery and in negligence in
failing to advise his patient to be non-weight bearing and of the possible effects of normal use of her
leg. The trial judge also found Miss Brushett contributorily negligent to the extent of twenty percent
as a result of her failure to inquire what was the proper use of the crutches in her situation. As the
question of liability only was before the trial court, damages were not assessed. Dr. Cowan has
appealed the trial judge's decision to this Court.
Assessment of the finding of battery
Battery is the unjustified application of force to the person of another (Salmon and Heuston: "On
the Law of Torts" nineteenth edition p. 133). In actions for battery alleged to have been committed
in the course of surgery, the defence of justification often centres upon the consent given by the
patient to his or her doctor in relation to the operation.
The definitive canadian authority to date on this type of battery is Reibl v. Hughes (1980) 2
S.C.R. 880. In that case the patient became paralysed and impotent during or immediately following
an operation to remove an arterial occlusion. The battery aspect of the patient's claim was based
upon lack of informed consent in that the operating physician had not informed him of the risk of
paralysis. Laskin C.J. held that the failure to disclose attendant risks should go to negligence rather
than to battery.
Reibl diminished the scope of battery in the medical context and it also prescribed its parameters
(see "Canadian Tort Law"; Allen M. Linden, fourth edition pp. 67-68). These were defined by
Laskin C.J. at pp. 890-891:

In my opinion, actions for battery in respect of surgical or other medical treatment
should be confined to cases where surgery or treatment has been performed or given to
which there has been no consent at all or where, emergency situations aside, surgery
or treatment has been performed or given beyond that to which there was consent.
This standard would comprehend cases where there was misrepresentation of the
surgery or treatment for which consent was elicited and a different surgical procedure
or treatment was carried out. See, for example, Marshall v. Curry (consent given to
operation to cure hernia; doctor removes patient's testicle; action in battery); Murray v.
McMurchy (consent given to a caesarian operation; doctor goes on and sterilizes the
patient; doctor liable for trespass to the person); Mulloy v. Hop Sang (doctor told to
repair hand and not to amputate; performs amputation; held liable in trespass); Winn
v. Alexander and the Soldiers Memorial Hospital consent given to caesarian, doctor
goes further and sterilizes the patient); Schwiezer v. Central Hospital et al (patient
consented to operation on his toe, doctor operated on back instead (spinal fusion);
doctor liable for trespass to the person)….
Citing Reibl, the trial judge focused her assessment entirely upon the formal consent signed by
Miss Brushett. In so doing, she found paragraph 3 inapplicable and paragraph 2 too vague to permit
an interpretation expanding Miss Brushett's consent beyond the muscle biopsy to which she
specifically consented in the initial part of the document. As a result she found that the bone biopsy
amounted to a battery.
In my respectful opinion the learned trial judge erred in confining her assessment to the formal
written consent form. It is noted that Laskin C.J. in Reibl held that battery should be confined to
cases where there has been "no consent at all" or where medical procedures go "beyond that to
which there was consent". He did not state that one's inquiry must be limited to the specific formal
consent. On the contrary, the statement that battery is predicated upon the absence of any consent
"at all" implies that one must examine all aspects of the situation to determine if the patient had
agreed to the medical procedure in respect of which complaint is laid.
Therefore, all relevant circumstances leading up to the surgery should be considered when
determining what the patient agreed to when he or she submitted to the procedure. Any written
consent will bear obvious weight upon such an assessment. However, inasmuch as many formal
consents are signed - as was the one in the case at bar - immediately before the surgery, on the
threshold as it were of the operating room, when a patient is experiencing a certain degree of trauma
and stress, the circumstances leading up to his or her presence at the hospital are relevant to the
patient's intent and the consent form ought to be read in light of them.
In the present case, the circumstances show Miss Brushett to have been referred to Dr. Cowan for
the purpose of investigating persistent problems associated with an injury which she had sustained.
Within a relatively short period of time Miss Brushett had a number of consultations and underwent
several investigative procedures at Dr. Cowan's instigation, all of which were aimed at determining
the cause of her symptoms. Indeed, the biopsy was part of the ongoing investigative process.
It is true that the consent form made specific reference to a muscle biopsy and that the patient
must have entered hospital contemplating a part of her muscle was to be excised. However, this was

because the bone scan indicated that certain abnormalities detected by it were due to muscle
damage. Submission to the surgical procedure was for the purpose of determining the cause of her
persistent problem with her right thigh and to achieve this she agreed to undergo a procedure that
would enable a portion of her body inside the thigh to be excised for investigation. While the scan
caused, at that juncture, both the Doctor, Miss Brushett and the written consent to focus upon the
muscle in her right thigh, the overriding general purpose and intent must be taken to remain
investigatory to determine the cause of the medical problem for which she had first consulted the
specialist.
Had the scan signalled potential bone as well as muscle disorders, it is reasonable to assume
specific reference would have been made in the consent to bone biopsy and that Miss Brushett
would have agreed to it as well. In fact the trial judge, while addressing the Doctor's negligence in
relation to pre-operative advice, concluded that upon discovery of the discoloured bone and possible
malignancy, Miss Brushett as a reasonable patient would have consented to the procedure.
It is, therefore, against the background of these circumstances that the formal consent must be
viewed. In doing so the perceived intrinsic vagueness which the trial judge felt rendered paragraph
2 ineffective becomes clearer. Likewise paragraph 3 acquires a relevance.
Considered from that perspective of the circumstances, the authorization in the second paragraph
consenting "... to such further or alternate measures as may be found to be necessary during the
course of the operation or special procedure ..." may be construed, in my opinion, as consenting to
the removal of a necessary sample of the bone adjacent to the muscle in pursuit of the continuing
investigative process. The discretion which paragraph 3 records to have been given to the operating
surgeon supports this view.
The law has always clearly recognized the individual's right to determine medical treatment upon
his or her person (see Allan v. New Mount Sinai Hospital (1980) 28 O.R. (2nd) 356 per Linden J. at
pp. 364-365). It may not be abridged by considerations of medical convenience. However, this
inviolable right must be interpreted in relation to the overall social interest of precluding undue
hindrance of the physician legitimately acting within the scope of the consent actually given by
adopting too narrow a view of its ambit. The full extent of that consent must be gained by looking at
all of the circumstances arising from the relation of doctor and patient, against the background of
which the formal consent will be viewed.
In summary, I conclude, with respect, that the trial judge erred in looking exclusively to the
signed consent form without regard to all of the factors. Considering all of these circumstances, I
am of the opinion that the bone biopsy performed upon Miss Brushett by Dr. Cowan did not go
beyond the consent given by her to him and, hence, there was no battery.
[The finding of negligence by the Court below was upheld.]

Appeal allowed in part.

R v Asante-Mensah
[2003] 2 SCR 3
[The appellant, a taxi driver, repeatedly "scooped" fares at the arrivals level of Pearson International
Airport (Toronto) without a permit, contrary to regulations. He shrugged off the fines resulting
from charges of trespass. In an effort to control the problem, the airport authorities decided to
exercise their power of "citizen's" arrest under s. 9 of the Ontario Trespass to Property Act [“TPA”].
This appeal arose from an incident where an airport inspector approached the appellant, touched his
shoulder, and informed him that he was under arrest for trespassing and that he would be detained
until the police arrived. The appellant attempted to enter his vehicle to flee the scene but the
inspector blocked his way. During the confrontation, the appellant shoved his car door against the
inspector to cause him to back off and fled. The trial judge concluded that the appellant could not be
convicted of resisting a lawful arrest because, while the inspector used "reasonable force" to make
the arrest, he was not authorized to do so. The Court of Appeal set aside the acquittal and
substituted a conviction.]
BINNIE J. –
….
IV. Analysis
24 This appeal arises in the context of a justifiably frustrated airport authority seeking to control
"scooping" activities on its premises which even the appellant concedes are unlawful. Yet the
implications of recognizing a power to use force in effecting an arrest under the TPA go far beyond
the present context. Countryside ramblers come face to face with farmers. Teenagers occasionally
upset mall owners who think adolescents "hanging out" deter business. Drifters seek shelter in
railway stations. Protesters march their placards onto the private property of a target business. The
list of potential confrontations goes on.
25 In recent years, provincial legislation such as Ontario's TPA has become the primary legal
basis upon which private security firms and the like monitor and control activities on private
properties. Intelligarde, one of Ontario's largest private security firms, estimates that its guards have
arrested over 30,000 people in the last 20 years on the basis of the TPA…. G. S. Rigakos writes that
"the most well-worn piece of legislation for Intelligarde staff is the Trespass to Property Act. It
provides them with broad powers of arrest on private property and is the statute of choice among a
litany of provisions making it very easy for private security guards to arrest citizens in Ontario"
(The New Parapolice: Risk Markets and Commodified Social Control (2002), at pp. 52-53).

26 The power of arrest is a potent weapon to put in the hands of landowners and occupiers to be
wielded in protection of their private property. Whether or not force is used, the liberty of the
person arrested is compromised. The TPA states expressly that there is no requirement for a judicial
warrant. The right to arrest arises when the occupier has "reasonable and probable grounds" to
believe the person arrested is a trespasser (s. 9(1)). The arrested person is then handed over to the
police. When so much of the space where the modern community gathers, including airports and
shopping malls, is in private hands, there is legitimate controversy about the nature and scope of the
occupier's arrest power….
27 The decision to grant or withhold the power of arrest is a legislative decision. Absent a
Charter challenge, our task is limited to statutory interpretation. The power of arrest is clearly
granted to occupiers. We are simply required to determine the content of the legislative grant.
Section 9 of the TPA provides, without elaboration, that "a person authorized by the occupier may
arrest without warrant any person he or she believes on reasonable and probable grounds to be on
the premises" as a trespasser (emphasis added).
28 The word "arrest" has a well-understood meaning at common law. Unless the context
otherwise dictates, I think we are bound to interpret the word as it appears in s. 9 of the TPA in
accordance with the common law of arrest….
(b) Arrest at Common Law
33 A good starting point is the description of an arrest at common law provided by Lord Diplock
in Holgate-Mohammed v. Duke, [1984] A.C. 437 (H.L.), at p. 441:
The word "arrest" ... is a term of art. First, it should be noted that arrest is a
continuing act; it starts with the arrester taking a person into his custody, (sc. by
action or words restraining him from moving anywhere beyond the arrester's
control), and it continues until the person so restrained is either released from
custody or, having been brought before a magistrate, is remanded in custody by the
magistrate's judicial act. [Emphasis added.]
….
34 ….Section 9(2) now requires the occupier to "give the person arrested into the custody of the
police officer". [It] presuppose[s] detention and a measure of continuing restraint on liberty between
the initiation of the arrest and the delivery of the person arrested to the police. Thus, adapting the
incidents of an "arrest" at common law to the legislative grant of a power of arrest in s. 9 of the
TPA, the occupier is permitted the means (reasonable force) to fulfill the duty (delivery of the
person arrested) to achieve the purpose of the arrest (to terminate the trespass and bring the
trespasser to the police to be dealt with according to law).
35 The appellant argues that it is anomalous to allow his liberty to be restrained by arrest and
detention when, if he were charged with trespass under s. 2(1) of the TPA and convicted, the only
consequence would be a fine of no more than $2,000. There would be no imprisonment. In other
words, he says, the processes of the TPA permit a greater interference with his liberty than any

possible outcome of a successful prosecution. It cannot be disputed, however, that the legislature
has conferred a power of arrest on occupiers, and imposed a duty to deliver the person arrested to
the police. A serious interference with personal liberty of a trespasser is thus clearly authorized by
the TPA even if he submits, i.e., whether "reasonable force" is used or not….
(c) The Concept of a Citizen's Arrest
36 The concept of "arrest" by private citizens is as old as the common law. It predates the rise of
the modern police force. Laycraft C.J.A. observed in Lerke, supra, at p. 135:
The power exercised by a citizen who arrests another is in direct descent over
nearly a thousand years of the powers and duties of citizens in the age of Henry II in
relation to the "King's Peace".
37 The "King's Peace" itself was a concept introduced by the Norman Kings. It required the
inhabitants of each community to apprehend all felons, and held them collectively responsible for
failing to do so: Statute of Winchester, 13 Edw. 1, Stat. 2 (1285), cc. 1, 2, 4 and 6; J. F. Stephen, A
History of The Criminal Law of England (1883), vol. I, at p. 189. At common law, a private citizen
had both a right and a positive obligation to perform an arrest when a felony was being committed
or had "in fact" been committed: Stephen, supra, at p. 193; W. Hawkins, A Treatise of the Pleas of
the Crown (8th ed. 1824), vol. II, c. 9 "Of the Court of the Coroner", Sect. 6, at p. 74. Things could
get quite bloody, as Blackstone recounts:
Any private person (and a fortiori a peace officer) that is present when any felony
is committed, is bound by the law to arrest the felon; on pain of fine and
imprisonment, if he escapes through the negligence of the standersby. And they may
justify breaking open doors upon following such felon: and if they kill him, provided
he cannot be otherwise taken, it is justifiable; though if they are killed in endeavoring
to make such arrest, it is murder. [Emphasis in original.]
(W. Blackstone, Commentaries on the Laws of England, Book IV, 1769, at pp. 289-90.)
38 Felonies were serious crimes, of course, and the authority and duty of private citizens to arrest
for misdemeanours were significantly more limited. In King v. Poe (1866), 15 L.T.R. (N.S.) 37
(Exch. Ct.), it is reported at p. 40 that there is no "right to arrest a person ... of a misdemeanor,
where there is no breach of the peace, and where it is not necessary to arrest the offender to prevent
the renewal of the act". Simple trespass did not ordinarily give rise to a breach of the peace, and
therefore, at common law, did not ordinarily give rise to a right of arrest: see Frey v. Fedoruk,
[1950] S.C.R. 517, at p. 520 (where this Court held that clandestine entry onto private property by a
"peeping tom" did not constitute a breach of the peace).
39 The airport inspectors, as stated, derive their power to arrest from statute. Powers of arrest
have been conferred on ordinary citizens by statute from early times…. The citizen's power of arrest
survives under s. 494 of the Criminal Code (Cr. C.). As will be seen, many federal and provincial
statutes authorize a citizen's arrest but few give any explicit guidance about its procedures and

consequences. The explanation is that legislators presuppose that the term has a well-known legal
significance (i.e., is a term of art) derived from the common law.
40 The development of modern police forces brought about a transfer of law enforcement
activities from private citizens to peace officers. But it is the peace officer's powers which are in a
sense derivative from that of the citizen, not the other way around. As the House of Lords
commented in Christie v. Leachinsky, [1947] A.C. 573, at p. 591, per Lord Simonds, at common
law, "[i]t is to be remembered that the right of the constable in or out of uniform is, except for a
circumstance irrelevant to the present discussion, the same as that of every other citizen". See also
R. E. Salhany, Canadian Criminal Procedure (6th ed. (loose-leaf)), at p. 3-8.1.
(d) The Arrest Procedure
41 The TPA does not set out the procedure for arrest. I accept, of course, that statutes which
encroach on the liberty of the subject should be construed, where ambiguous, in favour of upholding
such liberty: Colet v. The Queen, [1981] 1 S.C.R. 2, at p. 10, per Ritchie J. Here, however, the word
"arrest" is not ambiguous. It is a term of art. It describes a well-understood legal procedure. The
TPA incorporates by reference the incidents of arrest at common law except as modified expressly
or by necessary implication.
42 In R. v. Whitfield, [1970] S.C.R. 46, this Court adopted, for the purposes of the Criminal
Code, the following common law definition of the act of arrest, per Judson J., at p. 48:
Arrest consists of the actual seizure or touching of a person's body with a view to
his detention. The mere pronouncing of words of arrest is not an arrest, unless the
person sought to be arrested submits to the process and goes with the arresting
officer.
This definition was accepted as correct by a unanimous Court in R. v. Latimer, [1997] 1 S.C.R.
217, at para. 24, and is not contested by the appellant. What the appellant says, however, is that he
was not required by law to acquiesce in the further efforts of the inspector (which the trial judge
characterized as reasonable) to hand him over to the police….
An arrest occurs when a police officer states in terms that he is arresting or when he uses force to
restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he
will, if necessary, use force to prevent the individual from going where he may want to go.
[Emphasis added.]
44 The touching of the appellant and the door-shoving incident were, from the perspective of the
participants, a single continuing event. To say the arrest is initiated by a touch is not to say that the
power incidental to arrest is thereby exhausted. The purpose of the arrest (delivery of the accused)
remained to be fulfilled. The legislature should not be taken as intending to lay on the occupier a
duty of delivery and at the same time impose civil and criminal liability for the use of reasonable
force necessary for its fulfilment.

45 In the present case, the two arrests were initiated by words of explanation and a mere
"touching". If touching is sufficient in a particular case to bring about compliance, then touching is
all "the force" that is authorized…. There is no doubt the appellant understood the significance of
the inspector's touch because, according to the trial judge, he made every effort to avoid being
touched.
46 Arrest may also be effected by words and a restraint on liberty which is accompanied by
submission. …[I]n Latimer, supra, … the accused, a Saskatchewan farmer, was detained by police
on suspicion of terminating the life of his handicapped daughter. The police, for their own reasons,
intended to stop short of arresting him and no "words of arrest" were spoken. No force was used.
However, the issue, for purposes of s. 9 of the Charter ("arbitrary detention"), was defined by the
Court as what the person arrested understood. It was concluded that he submitted to go with the
police because he understood that he was under compulsion to do so. There was, in the words of
Lamer C.J., a de facto arrest (para. 25). Latimer considered himself deprived of "his liberty to go
where he pleases": Spicer v. Holt, [1977] A.C. 987 (H.L.), at p. 1000.
47 In the present case, however, the appellant certainly did not, in the time-honoured phrase,
"resign his personal liberty"…. Something more than words or a touch was required to secure his
compliance. Therefore, in my view, something more was authorized….
(e)The Status of the Appellant Between the Act of Arrest and His Expected Delivery to the Police
49 The appellant seeks to compartmentalize the apprehension of an arrested person into distinct
and separate stages including detention, arrest, custody and delivery to the police, with different
rights and obligations attaching to the inspector and the appellant at the different stages. At
para. 197, the trial judge concluded on this point that, once the inspector had "touched" the
appellant to make the arrest, he
was not authorized to use force to continue the lawful arrest and custody of the
accused. To the extent that he was engaged in doing so, as I have earlier found, the
ground transportation inspector was not lawfully executing the arrest of the accused.
[Emphasis added.]
The trial judge thus treated the arrest as a "continuing" status and I agree with him. However if,
as I conclude below, an occupier is entitled to use reasonable force to initiate the status then, in my
view, it follows from the nature of an arrest that the occupier is entitled to use reasonable force to
maintain the status. Once the trespasser is delivered to the police, s. 9(3) of the TPA deems that the
officer has made the arrest. At that point, it will be out of the hands of the occupier to determine if
the arrest should be maintained or whether lesser measures suffice.
….
(f) The Use of Reasonable Force
51 At common law, an interference with the arrested person's liberty, including the use of force,
must be no more than is "reasonably necessary": Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35;

R. v. Godoy, [1999] 1 S.C.R. 311, at para. 22. This limitation was expressed by the Ontario Ministry
of the Attorney General in its advice to occupiers in a 1987 publication, "This land is whose land? A
legal guide to property protection rights", at p. 14:
An occupier will be arresting a trespasser if any actual restraint is imposed on a

person's liberty against that individual's will.
The restraint may be imposed by the application of reasonable force, or by

circumstances that imply the threat of force. In every case, the trespasser should be
informed of being under arrest and the reason for the arrest.
….
53 The trial judge acknowledged that a policeman could use reasonable force but concluded that
the occupier could not, yet the s. 9 arrest power confers a single power of arrest exercisable by "[a]
police officer, or the occupier of premises, or a person authorized by the occupier". At common law
too, as we have seen, the powers of the police grew out of the powers of arrest of the citizen. It
would therefore be anomalous if, in the exercise of exactly the same statutory power, reasonable
force could be used by the police to maintain the state of arrest, but if the arrest is made by an
occupier under precisely the same s. 9(2) power of arrest, there were no such authority. The TPA,
like the common law, does not differentiate the power of arrest according to the status of the person
exercising it. In fact, the use of force under the TPA has been upheld both when police officers
make the arrest … and in the case of arrest by an occupier….
54 If the law were otherwise, s. 9 of the TPA would have conferred on the occupier a completely
symbolic power of arrest. The concept [of a power to arrest without the right to use force] would be
resuscitated for arrests for provincial offences other than by peace officers. I do not think we should
encourage a patchwork of different types of arrest unless the wording of a statute either expressly or
by necessary implication requires us to do so.
55 There is no such compelling circumstance here. On the contrary, the result of the appellant's
argument would give trespassers like the appellant the upper hand simply by refusing to submit.
They would render wrongful even the most reasonable efforts by the occupier to fulfill the TPA
obligation to deliver him or her to the police.
56 The appellant's strongest argument is the public interest in avoiding physical confrontations
between private citizens. However, even on the appellant's theory, if the trespasser once arrested
attempts to flee, the inspector would have a right to use reasonable force to prevent the commission
of an indictable offence, namely evading lawful custody. Thus, denying the occupier the right to use
reasonable force in making and continuing the arrest does not mean that in the arrest situation no
force will be used. So too we must consider the common law powers of physical ejection of a
trespasser discussed below. Anomalies as to when reasonable force can and cannot be used are
avoided not only by recognition of the incidents of arrest at common law, but also by virtue of s. 28
of the Interpretation Act which provides:
28. In every Act, unless the contrary intention appears,

(a)...
(b)where power is given to a person, officer or functionary to do or to enforce the

doing of an act or thing, all such powers shall be understood to be also given as are
necessary to enable the person, officer or functionary to do or enforce the doing of
the act or thing; [Emphasis added.]
57 The appellant says that force is not a necessary element of arrest. In Latimer, he says, no force
was used yet a de facto arrest resulted. Therefore, he says, s. 28(b) does not apply. The better view,
however, is that the ability to use force often provides the necessary precondition to securing the
submission of the person arrested. It is therefore necessary to the efficacy of the arrest power, as the
facts of this case demonstrate.
58 The anomalies inherent in the appellant's position can be looked at in another way. It is not
contested that an alternative to arrest would have been the forcible ejection of the appellant from the
airport property: see Diggs v. Century Investigation and Security Services Inc., [2002] O.J.
No. 4251 (QL) (S.C.J.), at para. 62: "In ejecting the trespasser, the occupier or other person with
authority may use a reasonable degree of force, so long as he uses no more force than is reasonably
necessary"; MacDonald v. Hees (1974), 46 D.L.R. (3d) 720 (N.S.S.C.); Mullins v. Levenick, [1998]
N.B.J. No. 60 (QL) (Q.B.). Ejection by necessary force is a defence now enshrined in s. 41(1) of the
Criminal Code. The situation would thus be, on the appellant's view, that the inspector could have
used the force reasonably necessary to escort the appellant off the airport property, but if on their
way down the arrivals ramp they met a policeman coming the other way, and the inspector
delivered the appellant to the police instead of continuing their walk to the airport perimeter, the
forced march, otherwise lawful, would have become assaultive. All would depend on the inspector's
original intent, arrest or ejection. Such distinctions would serve no useful purpose, and should not
be presumed to have been intended by the legislature.
59 Where a lawful arrest under the TPA occasions some intentional pushing and shoving, the
question is, as the Court of Appeal noted, who should be treated as the wrongdoer, the inspector or
the scooper? In my view, the respondent is correct. Providing the force used is no more than is
reasonable and necessary, the person undertaking the arrest is acting within the scope of his or her
s. 9 authority….
(j) Policy Arguments
68 The concern expressed by the trial judge about the potential escalation of violence if private
occupiers have the right to use force in furtherance of their private interest is a real one, although
the emphasis on "private" interest must be qualified by the acknowledgment that the prosecution, if
it proceeds, is subject to the control of a Crown Attorney and a fine, if any, is payable to the public
purse.
69 The TPA relates to a highly specific and limited offence. The effect of denying the occupier
the right to use any degree of force would be to subject him or her to tort claims because of the
attempt to deliver the arrested person to the police in compliance with s. 9(2) of the Act. In the
present case, for example, the appellant followed up the door-shoving incident on July 25 with a

private assault charge against the inspector. It seems to me that if the legislature considers a matter
of sufficient importance to warrant the grant of a special power of arrest, it would not wish, as a
matter of policy, to "chill" its exercise by denying any protection to those who exercise it in a
reasonable way.
70 The appellant also contends that the legislature could not have intended to escalate a minor
provincial offence such as trespass into a major "escape arrest" offence under the Criminal Code.
This escalation is not surprising. Firstly, even the appellant now admits that he was properly
convicted of escaping lawful custody, which is equally an offence prosecutable by summary
conviction or indictment under the Criminal Code. Secondly, the law regards a defiance of lawful
authority more seriously than the original offending act in many circumstances, e.g., the sanctions
meted out for leaving the scene of an accident. The triggering offence may be quite minor, e.g.,
careless driving, but if there is an attempt to evade civil or criminal liability, it is the evasion to
which the law attaches greater importance. Similarly, the act of resisting lawful arrest or escaping
lawful custody can reasonably be seen as more serious than a simple trespass against private
property, and the Criminal Code so regards it.
(k) What Level of Force is Reasonable and Justified?
71 Many trespasses are of trivial importance. They are best handled by means short of an arrest.
This was recognized in the 1987 Ontario Ministry of the Attorney General's paper "This land is
whose land?", supra, at pp. 14-15:
An arrest is a grave imposition on another person's liberty and should only be attempted if other
options prove ineffective. Further, an arrest attempt may lead to a confrontation more serious than
the initial offence of trespass, and should be exercised with caution. Excessive force or improper
use of the arrest power, may leave the occupier, or a designated agent, open to both criminal
charges and civil liability.
72 Individuals who were wrongly arrested, or against whom unreasonable force was used, have
successfully pursued prosecutions for assault as well as claims for civil damages against the
arresting party. See, e.g., Chopra v. Eaton (T.) Co. (1999), 240 A.R. 201 (Q.B.), at para. 147
(private security guard liable in damages for unnecessarily putting store customer in headlock and
handcuffing him); Briggs v. Laviolette (1994), 21 C.C.L.T. (2d) 105 (B.C.S.C.) (private citizen
liable in damages for bodily injury caused by slapping in face and poking with stick an individual
he thought had broken his car window); and R. v. Freake (1990), 85 Nfld. & P.E.I.R. 25 (Nfld.
Prov. Ct.) (building owner convicted of assault for using excessive force against 11-year-old
suspected trespasser).
73 A certain amount of latitude is permitted to police officers who are under a duty to act and
must often react in difficult and exigent circumstances…. The same latitude will not necessarily be
shown to an occupier who is under no duty to act and who instigates a confrontation with a
trespasser.
74 Further, "reasonable force" in the context of the TPA may have to have regard not only to
what force is necessary to accomplish the arrest, but also to whether a forcible arrest was in all the

circumstances a reasonable course of action in the first place. I say this because determining
whether "a defendant who claims to have been enforcing the criminal law is liable in tort
necessarily involves taking into account what the criminal law states is or is not justifiable conduct"
(emphasis added): G. H. L. Fridman, The Law of Torts in Canada (1989), vol. 1, at p. 70.
75 Justification in the criminal law looks at a broader range of factors than simply the physical
force required to restrain a person arrested: see, e.g., R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont.
C.A.), in which it was explained per Doherty J.A., at p. 499, that justifiability under s. 25 of the
Criminal Code (and, by extension, s. 146 of the Provincial Offences Act)
depends on a number of factors including the duty being performed, the extent to
which some interference with individual liberty is necessitated in order to perform
that duty, the importance of the performance of that duty to the public good, the
liberty interfered with, and the nature and extent of the interference.
76 This dictum was approved and applied by this Court in Godoy, supra, at para. 18, and is quite
consistent, it seems to me, with the advice mentioned earlier in the 1987 Ministry of the Attorney
General's paper "This land is whose land?", supra, that an arrest "should only be attempted if other
options prove ineffective" (p. 14). It is also consistent with s. 495(2) of the Criminal Code which
provides that a police officer shall not make an arrest (unless a warrant is obtained) with respect to
summary conviction (and some other lesser) offences unless it is necessary to do so to establish the
identity of the person arrested, to secure or preserve evidence of or relating to the offence, to
prevent the continuation or repetition of the offence or the commission of another offence, or to
secure the attendance in court of the person arrested. I mention this argument because, in a proper
case, it might provide a further constraint in tort on any potential abuse of s. 9. The scope of
justification in the context of a TPA arrest will have to await a proper case where an occupier who is
sued in tort as a result of a TPA arrest is called upon to demonstrate that the arrest, as well as the
force used to effect it, was reasonable in all the circumstances….
(m) Application to the Facts of this Case
78 The trial judge was under no doubt that arrest was a reasonable course of action on the facts of
this case. All other attempts to secure the appellant's compliance had failed, as the trial judge
explained, at para. 154:
While an inspector could swear an information causing the court to summons the
alleged offender, such an approach would not satisfactorily address the blatant,
ongoing commission of the offence. Likewise, a direction to Mr. Asante-Mensah to
leave the property had historically proven to be a meaningless communication. The
act of private arrest stops the commission of the offence and prevents its
continuation.
79 The appellant now concedes that if the inspector was entitled to use force, then the amount of
force applied by the inspector was reasonable….
Appeal dismissed.

Citizen’s Arrest and Self-defence Act
SC 2012, c 9
(in force 11 March 2013)
An Act to amend the Criminal Code (citizen’s arrest and the defences of property and persons)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of
Canada, enacts as follows:
SHORT TITLE
1. This Act may be cited as the Citizen’s Arrest and Self-defence Act.
CRIMINAL CODE
2. Sections 34 to 42 of the Criminal Code are replaced by the following:
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another
person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or
protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court
shall consider the relevant circumstances of the person, the other parties and the act,
including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other
means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident,
including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force;
and
(h) whether the act committed was in response to a use or threat of force that the person
knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the
purpose of doing something that they are required or authorized by law to do in the
administration or enforcement of the law, unless the person who commits the act that
constitutes the offence believes on reasonable grounds that the other person is acting
unlawfully.
DEFENCE OF PROPERTY
35. (1) A person is not guilty of an offence if
(a) they either believe on reasonable grounds that they are in peaceable possession of
property or are acting under the authority of, or lawfully assisting, a person whom they
believe on reasonable grounds is in peaceable possession of property;
(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by
law to do so,
(ii) is about to take the property, is doing so or has just done so, or
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person
from the property, or
(ii) preventing the other person from taking, damaging or destroying the property or
from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.
(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they
are, or who is believed on reasonable grounds to be, in peaceable possession of the property
does not have a claim of right to it and the other person is entitled to its possession by law.
(3) Subsection (1) does not apply if the other person is doing something that they are
required or authorized by law to do in the administration or enforcement of the law, unless
the person who commits the act that constitutes the offence believes on reasonable grounds
that the other person is acting unlawfully.
3. (1) Subsection 494(2) of the Act is replaced by the following:
(2) The owner or a person in lawful possession of property, or a person authorized by the
owner or by a person in lawful possession of property, may arrest a person without a warrant
if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they
believe on reasonable grounds that it is not feasible in the circumstances for a peace
officer to make the arrest.
(2) Section 494 of the Act is amended by adding the following after subsection (3):
(4) For greater certainty, a person who is authorized to make an arrest under this section is a
person who is authorized by law to do so for the purposes of section 25.

R v Feeney
[1997] 2 SCR 13
[The police, during a murder investigation in 1991, entered the accused's home (an equipment
trailer) without permission. They initially knocked at the door, but when they received no answer,
they tried the door, found it unlocked, entered, roused the sleeping accused by touching his leg,
ordered him to get up and took him to the front of the trailer for better lighting. The police arrested
him after noticing blood on his shirt. Following a caution with respect to the right to counsel but not
the right to immediate counsel, the police asked the accused a couple of questions, which he
answered, and briefly searched the trailer. The accused's shirt was seized and he was taken to the
police detachment where, before the accused had consulted with counsel, further statements and the
accused's fingerprints were taken. The police subsequently seized cash, cigarettes and shoes from
the trailer under a warrant obtained on the basis of the initial questioning of the accused in the
trailer, the initial search of the trailer, and the later interview at the detachment.
The accused was convicted of second degree murder and his appeal was unanimously dismissed. At
issue in the Supreme Court was whether the police’s entry, arrest, search and seizure were valid at
common law and whether they had violated the accused’s Charter right to be secure from
unreasonable search or seizure (s.8) and the right on arrest or detention to retain and instruct counsel
without delay and to be informed of that right (s.10(b)).]
The judgment of La Forest, Sopinka, Cory, Iacobucci and Major JJ. was delivered by
SOPINKA J.:-- ….
The Lawfulness of the Arrest
23 .... In what follows, I will consider first whether the arrest was lawful under the common law
rules relating to arrests in a dwelling house. Subsequently, I will consider whether the common law
rules are no longer appropriate in light of the Charter. I conclude that the arrest was unlawful under
either the rules of the common law or the Charter.
The Pre-Charter Law of Arrests in Dwelling Houses
24 In setting out the law of arrests in dwelling houses following forcible entry, Eccles v.
Bourque, [1975] 2 S.C.R. 739, at p. 744, stated that the following rule applies:
Entry can be made against the will of the householder only if (a) there are
reasonable and probable grounds for the belief that the person sought is within
the premises and (b) proper announcement is made prior to entry.
This case, however, pertained only to arrests with a warrant. In R. v. Landry, [1986] 1 S.C.R. 145, a
majority of the Court held that police may enter a private dwelling without permission to make a
warrantless arrest if the requirements in Eccles, supra, are met and the requirements in s. 450 [now
s. 495] of the Code are met. Recall that s. 495(1)(a) states:
495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on
reasonable grounds, he believes has committed or is about to commit an
indictable offence;...
Section 495(1)(a) sets out the subjective requirement for a warrantless arrest: the peace officer
himself or herself must believe reasonable grounds exist. An objective requirement was added in R.
v. Storrey, [1990] 1 S.C.R. 241: objectively there must exist reasonable and probable grounds for
the warrantless arrest to be legal. Combining Eccles, Landry, Storrey, and s. 495 leads to the
following proposition: a warrantless arrest following a forced entry into private premises is legal if:
(a) the officer has reasonable grounds to believe that the person sought is within the premises; (b)
proper announcement is made; (c) the officer believes reasonable grounds for the arrest exist; and
(d) objectively speaking, reasonable and probable grounds for the arrest exist. I will consider these
requirements in turn and apply them to the case at bar.
Reasonable Grounds to Believe the Appellant Was in the Trailer

25 Given that Russell told him that the appellant was in the trailer, the officer had reasonable
grounds to believe that the appellant was in the trailer.
Proper Announcement
26 Eccles, supra, set out the following requirement for announcements prior to entry of private
premises without permission: except in exigent circumstances, police should give notice of presence
by knocking or ringing the doorbell, give notice of authority by identifying themselves as law
enforcement police officers and give notice of purpose by stating a lawful reason for entry.
Furthermore, before forcing entry, police should, at minimum, request admission and have
admission denied. In the case at bar, the police officers knocked and said, "Police", but were not
denied admission nor did they announce their purpose before forcing entry. The respondent defends
these apparent defects in the announcement by noting that no response was forthcoming since the
appellant was asleep and by arguing that the urgency of the situation and the fear of the destruction
of evidence legitimized a relatively brief announcement. In my view, this defence is largely
inadequate. As I will conclude below, this situation did not appear to comprise exigent
circumstances any more than any other situation following shortly after a serious crime. However,
whether or not the announcement requirement was met, in my view the subjective and objective
requirements for a legal arrest were not met. The announcement question thus does not need to be
finally resolved.
Subjective Grounds
27 In my view, it is clear that the subjective requirement was not met in the case at bar. The
officer in charge who knocked and entered, Sgt. Madrigga, testified in cross-examination that he did
not believe he had reasonable grounds to arrest the appellant when he entered the trailer. Consider
the following testimony:
Q And at that point as you are going to the trailer, you would agree with me
you had no intention of arresting Mr. Feeney?

A No, I just wanted to check what he had been doing.
Q And, of course, you didn't have a warrant for his arrest?
A No, I did not.
Q Because basically there wouldn't have been enough information to obtain a

warrant?
A That's correct.
Later in the cross-examination, the following exchange took place:
Q And from the time you went into the trailer, there was no suggestion that
you were going to let Mr. Feeney walk out of the trailer and go away?
A If I had no further evidence. If I had -- when I went in and talked to him, if

I had nothing to indicate that he was involved in this, I would -- it was
shaky if I would have had grounds for his arrest at that time, but I had to
check it out because I had people ask or tell me that this person was in the
area.
Q All right, so let's see if we agree on something. At the time you went into
the trailer, you didn't feel that you had grounds for his arrest, but when you
saw the blood splatter on him after looking at him, that's why you said --

A I had grounds to suspect that he could have been involved, sir, and I would
be negligent in my duty if I did not check that out.
Q Oh, I'm not arguing that point, Sargent [sic]. But you didn't have grounds
for an arrest?
A Not for an arrest at that time.
Such testimony appears to decide the matter, but the respondent claimed that other testimony
indicates that Sgt. Madrigga indeed had a subjective belief that he had reasonable grounds to arrest.
For example, the respondent referred to the following testimony:
Q On the other hand, what made you think you could walk in?
A Well, I had, in my mind, sir, I had, as far as I was concerned, I had a

suspect. If he would have, as I stated, if he would have come out when I
knocked on the door, then I wouldn't have gone in. However, I had two
people stating he had been in the area. I had Dale telling me that a vehicle
of his had been dumped basically in the same spot that Mr. Boyle's vehicle
had been dumped a short time after, like Mr. [sic] or Dale had moved his
vehicle and then this other vehicle was dumped there, puts Mr. Feeney
right at the area. I have him walking away from the area a short while later.
To me that gave me --
Sgt. Madrigga was interrupted at this point, but the respondent argued that one can infer that he
believed he had reasonable grounds to enter the trailer and arrest the appellant.
28 I cannot accept the argument of the respondent on this issue. First, the respondent relies on
questionable inferences from the officer's testimony, whereas the appellant may simply point to the
frank testimony of the officer that he did not believe he had reasonable grounds to arrest. On
balance, the testimony suggests the absence of a subjective belief. Second, if the officer believed he
had reasonable grounds to arrest the appellant prior to entry, why did he not in fact arrest the
appellant until after he had seen the bloodstains on the appellant's shirt? Both the words and actions
of the officer suggest that he did not believe he had reasonable grounds to make an arrest when he
forcibly entered the trailer.

29 In considering the legality of the arrest in the case at bar under pre-Charter law, the trial judge
did not consider adequately the lack of subjective belief in the reasonableness of the grounds to
arrest. Leggatt J. set out the reasonableness test as an objective one: so long as there were,
objectively speaking, reasonable and probable grounds, the standard is satisfied. He stated:
The test is really this. A reasonable person standing in the shoes of the officer
would believe reasonable grounds exist. It is an objective test.
Whether or not the trial judge was correct in concluding that the objective standard was met, a
conclusion with which I disagree below, the trial judge erred by relying exclusively on an objective
standard. According to the plain wording of s. 495, the peace officer may arrest someone only if, on
reasonable grounds, he or she believes the person to have committed an indictable offence. An
objective standard was added in Storrey, supra, but this did not displace the subjective requirement:
see Storrey, supra, at p. 250. Indeed, it would be inconsistent with the spirit of the Charter to permit
a police officer to make an arrest without a warrant even though he or she does not believe
reasonable grounds for the arrest exist. The absence of subjective belief, therefore, rendered the
arrest in the present case unlawful irrespective of the existence of objective grounds for the arrest
and the effect of the Charter on powers of police officers to enter a dwelling house without a
warrant in order to effect an arrest.
Objective Grounds
30 The finding by a trial judge of whether, objectively speaking, reasonable and probable
grounds for arrest existed clearly has a significant factual element and thus is owed some deference
by an appellate court. In the present case, in arriving at his conclusion that objective grounds for
arrest existed, in my view the trial judge committed two errors in principle that invite review of his
finding. First, he considered factors that are not relevant to the question of reasonable and probable
grounds. In considering the objective test, he stated:
As I have said, in my view it is an objective test. Given the surrounding

circumstances I have outlined, the need to preserve evidence, the clear indication
that the accused was a prime suspect, I believe the arrest took place in
compliance with both the Criminal Code and the Charter. [Emphasis added.]
In concluding that reasonable and probable grounds for arrest existed, the trial judge considered the
need to preserve evidence. In my view, it was an error of law for the trial judge to consider the need
to preserve evidence in considering whether reasonable and probable grounds, objectively speaking,
existed. Whether or not there is a need to preserve evidence is logically irrelevant to the question of
whether there are reasonable and probable grounds for an arrest. The trial judge thus erred in law
and his view on reasonable and probable grounds is open to appellate review.
31 Even if the trial judge did not err in considering the need to preserve evidence, in my view the
trial judge erred in failing to appreciate the evidence of the officer in charge at the scene of the
trailer. The trial judge noted that Sgt. Madrigga testified that he did not think he had sufficient
grounds to arrest until he observed the blood on the appellant, but did not advert to this evidence in
concluding that reasonable and probable grounds to arrest existed prior to the entry into the trailer.
In order to conclude that, objectively speaking, reasonable and probable grounds for arrest existed,

one must conclude that the officer on the scene was unreasonable in reaching a different conclusion.
The trial judge, however, did not explain his dismissal of the officer's evidence in this respect. In
my view, such a failure to clarify the basis for his finding that the objective test was satisfied
constituted an error of law….
34 In my view, as the lack of subjective belief on the part of the officer would suggest, the
requirement that, objectively speaking, reasonable and probable grounds for an arrest exist prior to
forcible entry is not met. The objective test as set out in Storrey, supra, is whether a reasonable
person, standing in the shoes of the officer, would have believed that reasonable and probable
grounds to make the arrest existed. Any finding that the subjective test is not met will generally
imply that the objective test is not met, unless the officer is to be considered to have an
unreasonably high standard.
35 In any event, in my view the objective test was not met regardless of the officer's views. An
arrest cannot be made solely for the purpose of investigation, but if grounds exist on a subjective
and objective basis, the fact that police intend to continue the investigation and do so does not
invalidate the arrest: see Storrey, supra. A lawful arrest may be made that allows the police to
continue their investigation, such as in Storrey where the police arrested a suspect in order to place
him in a police line-up to be identified or not, but it is a fundamental pre-requisite that the police
have reasonable grounds to arrest prior to arrest, whether or not the investigation is ongoing,
particularly where an arrest is made without the safeguards to the citizen resulting from the warrant
process. As Cory J. stated in Storrey, at p. 249:
Section 450(1) [s. 495(1)] makes it clear that the police were required to have
reasonable and probable grounds that the appellant had committed the offence of
aggravated assault before they could arrest him. Without such an important
protection, even the most democratic society could all too easily fall prey to the
abuses and excesses of a police state. In order to safeguard the liberty of citizens,
the Criminal Code requires the police, when attempting to obtain a warrant for an
arrest, to demonstrate to a judicial officer that they have reasonable and probable
grounds to believe that the person to be arrested has committed the offence. In
the case of an arrest made without a warrant, it is even more important for the
police to demonstrate that they have those same reasonable and probable grounds
upon which they base the arrest. [Emphasis added.]
….
The Post-Charter Law of Arrests in Dwelling Houses

(a) Principles in the Common Law
38 As noted, Landry, supra, set out the law concerning warrantless arrests following forcible
entry into a dwelling house. While the case was decided in 1986, it arose before the Charter came
into effect, as the majority took care to point out at p. 165. In my view, the Charter suggests that the
Landry test for warrantless arrests no longer applies….
(c) The Charter

42 In my view, the conditions set out in Landry for warrantless arrests are overly expansive in the
era of the Charter. As noted, Landry was largely based on a balance between privacy and the
effectiveness of police protection, but in the Charter era, as I will presently seek to demonstrate, the
emphasis on privacy in Canada has gained considerable importance. Consequently, the test in
Landry must be adjusted to comport with Charter values….
44 …. The analysis in Landry was based on a balance between the individual's privacy interest in
the dwelling house and society's interest in effective police protection. This Court held that the latter
interest prevailed and warrantless arrests in dwelling houses were permissible in certain
circumstances. While such a conclusion was debatable at the time, in my view, the increased
protection of the privacy of the home in the era of the Charter changes the analysis in favour of the
former interest: in general, the privacy interest outweighs the interest of the police and warrantless
arrests in dwelling houses are prohibited.
45 …. The purpose of the Charter is to prevent unreasonable intrusions on privacy, not to sort
them out from reasonable intrusions on an ex post facto analysis. If Landry were to be adopted in
the post-Charter era, there would be the anomalous result that prior judicial authorization is required
to intrude on an individual's privacy with respect to a search for things, but no authorization is
required prior to an intrusion to make an arrest. The result becomes more anomalous when Cloutier
v. Langlois, supra, is considered. Cloutier held that a search incidental to a lawful arrest does not
violate s. 8. Putting this proposition together with the proposition that a warrantless arrest in a
dwelling house is legal may lead to the conclusion that a warrantless search of a dwelling house is
legal so long as it is accompanied by a lawful arrest. Such a conclusion is clearly at odds with
Hunter, which held that warrantless searches are prima facie unreasonable. I conclude that generally
a warrant is required to make an arrest in a dwelling house.
46 I recognize that there are exceptions with respect to the unreasonableness of warrantless
searches for things. A warrantless search will respect s. 8 if authorized by law, and both the law and
the manner in which the search is conducted are reasonable. In R. v. Grant, [1993] 3 S.C.R. 223, for
example, it was held that s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, which provided
that a peace officer may search a place that is not a dwelling house without a warrant so long as he
believes on reasonable grounds that a narcotic offence had been committed, was consistent with s. 8
of the Charter if s. 10 were read down to permit warrantless searches only where there were exigent
circumstances. In the present context of searches for persons, in my view, there are also exceptions
to the Charter prohibition of warrantless arrests in dwelling houses. Indeed, these exceptions answer
Dickson C.J.'s policy argument about hampering the effectiveness of police investigations.
47 Dickson C.J. observed that police work might be greatly impeded by a warrant requirement.
He provided the example of an officer's arriving on the scene shortly after an offender has slipped
into a private dwelling. By the time the officer has discovered the suspect's name and has obtained a
warrant, the criminal will have sought refuge elsewhere. In my view, in circumstances such as these
there is an exception to the general rule that warrantless arrests in private dwellings are prohibited.
In cases of hot pursuit, the privacy interest must give way to the interest of society in ensuring
adequate police protection….
In cases of hot pursuit, society's interest in effective law enforcement takes precedence over the
privacy interest and the police may enter a dwelling to make an arrest without a warrant. However,
the additional burden on the police to obtain a warrant before forcibly entering a private dwelling to

arrest, while not justified in a case of hot pursuit, is, in general, well worth the additional protection
to the privacy interest in dwelling houses that it brings. I leave for another day the question of
whether exigent circumstances other than hot pursuit may justify a warrantless entry in order to
arrest….
48 While I have decided that a warrant is required prior to entering a dwelling house to make an
arrest, I have not yet set out the type of warrant that is required. In my view, an arrest warrant alone
is insufficient protection of the privacy rights of the suspect….
Dickson C.J. concluded [in Landry] that since an arrest warrant would not be useful in safeguarding
privacy, and since there was (and is) no provision in the Code authorizing a search for persons,
warrantless arrests in dwelling houses were permissible; otherwise suspects could take permanent
refuge in a dwelling house. While I agree that an arrest warrant fails to safeguard privacy
adequately, I disagree that since the Code is silent on prior authorization of a search for persons,
warrantless searches for persons are permissible. In my view, privacy rights under the Charter
demand that the police, in general, obtain prior judicial authorization of entry into the dwelling
house in order to arrest the person. If the Code currently fails to provide specifically for a warrant
containing such prior authorization, such a provision should be read in. While the absence of such a
provision could have a profound influence on the common law power of arrest, its absence cannot
defeat a constitutional right of the individual. Once a procedure to obtain such prior authorization is
created, the concern that suspects may find permanent sanctuary in a dwelling house disappears.
49 In my view, then, warrantless arrests in dwelling houses are in general prohibited. Prior to
such an arrest, it is incumbent on the police officer to obtain judicial authorization for the arrest by
obtaining a warrant to enter the dwelling house for the purpose of arrest. Such a warrant will only
be authorized if there are reasonable grounds for the arrest, and reasonable grounds to believe that
the person will be found at the address named, thus providing individuals' privacy interests in an
arrest situation with the protection Hunter required with respect to searches and seizures. Requiring
a warrant prior to arrest avoids the ex post facto analysis of the reasonableness of an intrusion that
Hunter held should be avoided under the Charter; invasive arrests without a basis of reasonable and
probable grounds are prevented, rather than remedied after the fact….
50 I would add that the protection of privacy does not end with a warrant; the other requirements
in Landry for an arrest in a dwelling house must be met along with the warrant requirement.
Specifically, before forcibly entering a dwelling house to make an arrest with a warrant for an
indictable offence, proper announcement must be made. As Dickson C.J. stated in Landry, at p. 161,
these additional requirements "minimize the invasiveness of arrest in a dwelling and permit the
offender to maintain his dignity and privacy by walking to the doorway and surrendering himself".
51 To summarize, in general, the following requirements must be met before an arrest for an
indictable offence in a private dwelling is legal: a warrant must be obtained on the basis of
reasonable and probable grounds to arrest and to believe the person sought is within the premises in
question; and proper announcement must be made before entering. An exception to this rule occurs
where there is a case of hot pursuit. Whether or not there is an exception for exigent circumstances
generally has not been fully addressed by this Court, nor does it need to be decided in the present
case given my view that exigent circumstances did not exist when the arrest was made….

The Constitutionality of the Initial Search of the Trailer
54 Hunter held that, under s. 8 of the Charter, there is a presumption that warrantless searches of
premises where the occupant has a reasonable expectation of privacy is unreasonable; the onus is on
the party who performed the search to prove its reasonableness. Collins, supra, outlined three
requirements for a search to be reasonable: (a) the search must be authorized by law; (b) the law
itself must be reasonable; and (c) the manner in which the search is carried out must be reasonable.
In the specific case of arrest, Cloutier, supra, held that searches incidental to a lawful arrest may
comply with s. 8. In the present case, however, the search was performed without a warrant or any
other legal authority, and was not incidental to a lawful arrest. The arrest was unlawful both because
the requirements for a warrantless arrest under s. 495 of the Code were not met, and, in any event,
the police cannot make warrantless arrests in private dwellings unless exceptional circumstances,
which were not present here, exist. Consequently, the entry into the trailer and the search and
seizure of the appellant's clothing violated s. 8 of the Charter….
[Lamer C.J. and L’Heureux-Dubé, Gonthier and McLachlin JJ. dissented.]

Syl Apps Secure Treatment Centre v. B.D.
2007 SCC 38
Abella J.:
1 Families are the core social unit. At their best, they offer guidance, nurture, and protection,
especially for their most vulnerable members -- children. When they cannot, and the child is at
serious risk, the law gives the state the right, in appropriate circumstances, to remove a child from
the rest of the family for his or her own protection. The significance and complexity of this
statutorily assigned responsibility explain the requirement for ongoing judicial oversight.
2 This is the child protection context, and it is, not surprisingly, a highly adversarial one. While it
recognizes that the family is the most private of institutions, it also recognizes that the entitlement to
be free from state intrusion does not make the family immune from the state's overriding duty to
ensure that children are protected from undue harm, including harm from the family. Evidence of
danger to the child will always attract the state's attention and, occasionally, involve ordering that
the child be placed for his or her own protection in the care of someone other than the family. The
question in this case is whether, a treatment centre and its employee into whose care a child has
been placed, owe a hitherto unrecognized legal duty of care to the family of a child they have been
ordered to protect.
Background
3 In January 1995, R.D. was apprehended by the Halton Children's Aid Society ("Halton CAS")
and placed in a foster home. She was 14 years old and had written a story at her school which
alleged that her parents had physically and sexually abused her. Her parents denied the allegations,
claiming, as the Court of Appeal noted, that R.D. was "delusional" ( (2006), 79 O.R. (3d) 45 (Ont.
C.A.)). The Halton Regional Police conducted an investigation. No criminal charges were laid.
4 According to the statement of claim, while in foster care, R.D. attempted suicide. As a result,
she was transferred in February 1995 to the pediatric psychiatric ward of Oakville Trafalgar
Memorial Hospital, where she again attempted suicide. This led, in March 1995, to her transfer to
Youthdale Crisis Centre, a psychiatric facility in Toronto, and then, in April, to the Whitby Mental
Health Centre. While at Whitby she attempted suicide for a third time.
5 In September 1995, on consent, Fuller J. found her to be a child in need of protection and
ordered temporary wardship. The terms of the order included the provisions that, "where possible",
attempts be made to reintegrate her into the family, and that there be a monthly meeting between the
Halton CAS and the girl's parents.
6 At this and all subsequent hearings, R.D. was represented by counsel from the Office of the
Children's Lawyer.

7 The provisions under which R.D. was found to be in need of protection were ss. 37(2)(f) and
(h) of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("Act"). At the time they stated:
37. ...
(2) A child is in need of protection where,
.....
(f) the child has suffered emotional harm, demonstrated by severe,
(i) anxiety;
(ii) depression;
(iii) withdrawal, or
(iv) self-destructive or aggressive behaviour,
and the child's parent or the person having charge of the child does not provide, or refuses or is
unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
.....
(h) the child suffers from a mental, emotional or developmental condition that, if not remedied,
could seriously impair the child's development and the child's parent or the person having charge of
the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy
or alleviate the condition;
8 Neither provision relates explicitly to physical or sexual abuse, but both anticipate that a child
is suffering from serious emotional harm which the parents cannot or will not remedy or alleviate.
In November 1995, over the objections of her parents but with her consent, Fuller J. ordered that
R.D. be sent to the Syl Apps Secure Treatment Centre, operated by the Ontario Ministry of
Community and Social Services. The social worker who was R.D.'s Clinical Case Coordinator at
the treatment centre was Douglas Baptiste.
9 R.D.'s temporary wardship order was extended by Fisher J. in April 1996. In October 1996,
with R.D.'s consent, he ordered that she be made a permanent ward of the Crown. The Crown
wardship order included a provision that any visitation and contact with family members be at the
discretion of the child.
10 The parents appealed this order. On December 1, 1998, Clark J. dismissed the appeal,
concluding that the trial judge had made no error of law and acted in the best interests of the child.
11 In November 1998 R.D. turned 18.

12 In May 1999, R.D.'s parents, grandmother, and three siblings issued a statement of claim
seeking damages of $40,000,000 for the negligence of various government officials and institutions,
including the Halton CAS, R.D.'s several social workers and doctors, the Syl Apps Secure
Treatment Centre, and Mr. Baptiste. The family's allegations revolved around their assertion that
R.D. was treated by the treatment centre and Mr. Baptiste as if her parents had physically and
sexually abused her, that this was negligent conduct, and that the negligence caused R.D. not to
return to her family, thereby depriving the family of a relationship with her. They sought damages
for nervous shock, emotional distress and physical and mental illness, among others.
13 R.D. was not a party to the action.
14 In March 2004, the defendant treatment centre and Mr. Baptiste, along with Dr. Richard
Meen, a psychiatrist who was the treatment centre's Clinical Director; Dr. Alina Lazor, a
psychiatrist involved in R.D.'s care at the Whitby Mental Health Centre; and Megan Pallet, R.D.'s
lawyer from the Office of the Children's Lawyer, brought a motion under Rule 21.01(1)(b) of the
Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking to strike out the statement of
claim on the grounds that it disclosed no reasonable cause of action.
15 The test on a Rule 21 motion was set out by this Court in Hunt v. T & N plc, [1990] 2 S.C.R.
959 (S.C.C.):
[A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious"
that the plaintiff's statement of claim discloses no reasonable cause of action? ... Neither the length
and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant
to present a strong defence should prevent the plaintiff from proceeding with his or her case.
[Emphasis added; p. 980.]
16 The motions judge, Hoilett J., granted the motion (2004 CarswellOnt 8102 (Ont. S.C.J.)). He
concluded that the two doctors owed a duty of care only to their patient, R.D. In his view, R.D.'s
lawyer, the treatment centre and Mr. Baptiste were in analogous circumstances to that of a doctor
and they also, therefore, owed a duty of care only to the child, not to her family.
17 The family appealed the order as it related to the Syl Apps Secure Treatment Centre and Mr.
Baptiste, not to the two doctors or R.D.'s lawyer.
18 In the Court of Appeal, the family abandoned their bad faith argument, resting their case on
the proposition that the treatment centre and Mr. Baptiste owed them a common law duty of care
giving rise to an action for damages in negligence. Laskin J.A., writing for the majority, allowed the
appeal on the basis that a secure treatment facility and a social worker employed there, may owe a
legal duty of care to the family of a child in their care. The matter should therefore be allowed to
proceed to trial. Sharpe J.A., in dissent, held that the potential for conflicting duties under the statute
and court orders, as well as the residual policy consideration of "serious and significant interference
with the capacity of the respondents to fulfil their primary and paramount duty to R.D.'s best
interests", negated a duty of care (para. 89). There was therefore no need for a "case-specific factual
inquiry that requires a full record at trial for its proper determination" (para. 90).

19 Both the majority and dissenting reasons acknowledged that imposing such a duty of care
would represent a novel duty at law. The benefit of making a determination on a Rule 21 motion
about whether such a duty should be recognized, is obvious. If there is no legally recognized duty of
care to the family owed by the defendants, there is no legal justification for a protracted and
expensive trial. If, on the other hand, such a duty is accepted, a trial is necessary to determine
whether, on the facts of this case, that duty has been breached.
20 For the reasons that follow, I agree with the motions judge and with Sharpe J.A. that to
recognize such a legal duty to the family of a child in their care, would pose a real risk that a secure
treatment centre and its employees would have to compromise their overriding duty to the child. I
also agree with Sharpe J.A. that "the duty of care pertaining to the relationship between children in
need of protection and those who are charged with their care should be clearly defined on a
categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis" (para.
74).
21 I would not, as a result, recognize such a new legal duty. It follows that, in my view it is "plain
and obvious" that the statement of claim discloses no reasonable cause of action against these
defendants.
Analysis
22 The issue in this appeal is whether the Syl Apps Secure Treatment Centre and Mr. Baptiste,
R.D's social worker/case coordinator there, owe a duty of care to the family of the child they have
been ordered by the court to treat. Because such a duty has never before been recognized, the
inquiry engages this Court's jurisprudence for determining when a new duty of care should be
recognized.
23 The analytic divining rod used by this Court for determining whether a duty of care exists was
first proposed in Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.),
adopted by this Court in Nielsen v. Kamloops (City), [1984] 2 S.C.R. 2 (S.C.C.), and definitively
refined in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79 (S.C.C.). It was confirmed in
Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80 (S.C.C.), and Childs
v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18 (S.C.C.).
24 To determine whether there is a prima facie duty of care, we examine the factors of reasonable
foreseeability and proximity. If this examination leads to the prima facie conclusion that there
should be a duty of care imposed on this particular relationship, it remains to determine whether
there are nonetheless additional policy reasons for not imposing the duty.
25 The basic proposition underlying "reasonable foreseeability" is that everyone "must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour" (McAlister (Donoghue) v. Stevenson, [1932] A.C. 562 (U.K. H.L.), per Lord
Atkin, at p. 580). The question is whether the person harmed was "so closely and directly affected
by my act that I ought reasonably to have them in contemplation as being so affected" (McAlister
(Donoghue) v. Stevenson , at p. 580).

26 There must also be a relationship of sufficient proximity between the plaintiff and defendant.
The purpose of this aspect of the analysis was explained by Allen Linden and Bruce Feldthusen in
Canadian Tort Law (8th ed. 2006) as being to decide "whether, despite the reasonable foresight of
harm, it is unjust or unfair to hold the defendant subject to a duty because of the absence of any
relationship of proximity between the plaintiff and the defendant" (p. 304).
27 When the relationship occurs in the context of a statutory scheme, the governing statute is a
relevant context for assessing the sufficiency of the proximity between the parties (Cooper , at para.
43; Edwards , at para. 9). As this Court said in Edwards : "Factors giving rise to proximity must be
grounded in the governing statute when there is one" (para. 9).
28 Where an alleged duty of care is found to conflict with an overarching statutory or public
duty, this may constitute a compelling policy reason for refusing to find proximity (Cooper , at para.
44; Edwards , at para. 6). Such a conflict exists where the imposition of the proposed duty of care
would prevent the defendant from effectively discharging its statutory duties. In Cooper , for
example, a duty to individual investors on the part of the Registrar of Mortgage Brokers was
rejected because it was found to "potentially conflict with the Registrar's overarching duty to the
public" (para. 44). Similarly, in Edwards a private law duty of care on the part of the Law Society to
the victim of a dishonest lawyer was rejected at the proximity stage since "[d]ecisions made by the
Law Society require the exercise of legislatively delegated discretion and involve pursuing a myriad
of objectives consistent with public rather than private law duties" (para. 14). In both cases, the
serious negative policy consequences of these conflicting duties were found to justify denying a
finding of proximity.
29 A statutory immunity provision may also be relevant. In Edwards a statutory immunity

provision was found to be indicative of the Legislature's intention to preclude compensation beyond
the amount provided by the lawyers'professional indemnity insurance and fund for client
compensation (paras. 16-17).
30 Depending on the circumstances of the case, the factors to be considered in the proximity
analysis include the parties'expectations, representations and reliance (Cooper , at para. 34). There
is no definitive list.
31 If a prima facie duty of care is found to exist based on reasonable foreseeability and
proximity, it is still necessary for a court to submit this preliminary conclusion to an examination
about whether there are any residual policy reasons which make the imposition of a duty of care
unwise. As noted in Cooper , "the McAlister (Donoghue) v. Stevenson foreseeability-negligence
test, no matter how it is phrased, conceals a balancing of interests. The quest for the right balance is
in reality a quest for prudent policy" (para. 29).
32 This means, the Court recognized, that policy is relevant at both the "proximity" stage and the
"residual policy concerns" stageof the Anns test. The difference is that under proximity, the relevant
questions of policy relate to factors arising from the particular relationship between the plaintiff and
the defendant. In contrast, residual policy considerations are concerned not so much with "the
relationship between the parties, but with the effect of recognizing a duty of care on other legal
obligations, the legal system and society more generally" (Cooper , at para. 37).

33 The possibility of some blending of policy considerations was noted by McLachlin C.J. and
Major J. in Cooper :
Provided the proper balancing of the factors relevant to a duty of care are considered, it may not
matter, so far as a particular case is concerned, at which "stage" [policy is considered]. The
underlying question is whether a duty of care should be imposed, taking into account all relevant
factors disclosed by the circumstances. [para. 27]
34 Accordingly, in order to establish that the Syl Apps SecureTreatment Centre and Mr. Baptiste
owed the family of R.D. aduty of care, (1) the harm complained of must have been reasonably
foreseeable, (2) there must have been sufficient proximity between them and the family such that it
would be fair and just to impose a duty of care, and (3) there must be no residual policy reasons for
declining to impose such a duty.
Applying the Test
35 The first question is whether it was reasonably foreseeable that the actions of the treatment
centre and Mr. Baptiste would harm the family. That requires asking, to paraphrase Lord Atkin in
McAlister (Donoghue) v. Stevenson , whether the Syl Apps Secure Treatment Centre and Mr.
Baptiste ought to have taken reasonable care to avoid acts or omissions which they could reasonably
foresee would be likely to injure R.D.'s family.
36 This is a complicated question in the child protection context, as the statement of claim in this
case demonstrates. The "misconduct" the family alleges is the treatment given to the child, and the
"harm" complained of was that the child was not reintegrated into her family. Neither treatment nor
its outcome is ever predictable, especially in the case of children found to be in need of protection,
where there is more hope than foreseeability. This branch of the test need not, however, be further
explored since, as found by the Court of Appeal and accepted by the parties in their arguments
before this Court, reasonable foreseeability is not disputed.
37 Even if "harm" to the family was reasonably foreseeable, the analysis stalls at the proximity
stage. The family asserts that its expectations and reliance on the defendants are based on the Child
and Family Services Act and the court orders. It argued that because ss. 1 and 37(3)5-7 of the Act
include a recognition of the importance of the family and of the integrity of the family unit, a
relationship of proximity should be found. An examination of the statute contradicts this assertion.
38 The governing statute is the Child and Family Services Act. Section 1 outlines its purposes. In
language similar to the wording when R.D. was apprehended, s. 1 now states, in part:
1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being
of children.
(2) The additional purposes of this Act, so long as they are consistent with the best interests,
protection and well being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give
support to the autonomy and integrity of the family unit and, wherever possible, be provided on the
basis of mutual consent.
2. To recognize that the least disruptive course of action that is available and is appropriate in a
particular case to help a child should be considered.
3. To recognize that children's services should be provided in a manner that,
i. respects a child's need for continuity of care and for stable relationships within a family and
cultural environment, ...
39 Section 37(3) of the Act recounts the factors courts are to consider when making an order in
the best interests of a child. These factors too are almost identical to those in force at the time of
R.D.'s apprehension. The particular factors her family relies on, subss. 5-7, are emphasized for
convenience:
37. ...
(3) Where a person is directed in this Part to make an order or determination in the best interests of
a child, the person shall take into consideration those of the following circumstances of the case that
he or she considers relevant:
1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet
those needs.
2. The child's physical, mental and emotional level of development.
3. The child's cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child's development of a positive relationship with a parent and a secure
place as a member of a family.
6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the
child's extended family or member of the child's community.
7. The importance of continuity in the child's care and the possible effect on the child of disruption
of that continuity.
8. The merits of a plan for the child's care proposed by a society, including a proposal that the child
be placed for adoption or adopted, compared with the merits of the child remaining with or
returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned
to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance.
40 The family also relied on the obligations of service providers under s. 2(2) of the Act to ensure
that children and their parents are heard and represented. These are, however, essentially procedural
rights and cannot ground proximity.
41 The deciding factor for me, as in Cooper and Edwards , is the potential for conflicting duties:
imposing a duty of care on the relationship between the family of a child in care and that child's
court-ordered service providers, creates a genuine potential for "serious and significant" conflict
with the service providers'transcendent statutory duty to promote the best interests, protection and
well-being of the children in their care.
42 When a child is placed in the care of the Children's Aid Society, or if Crown wardship is
ordered, the Act gives the Children's Aid Society or Crown "the rights and responsibilities of a
parent for the purpose of the child's care, custody and control" (s. 63(1)). This creates an inherently
adversarial relationship between parents and the state.
43 It is true that treating a child in need of protection can sometimes be done in a way that meets
with the family's satisfaction in the long term. But it is not the family's satisfaction in the long term
to which the statute gives primacy, it is the child's best interests. The fact that the interests of the
parents and of the child may occasionally align does not diminish the concern that in many, if not
most of the cases, conflict is inevitable.
44 The primacy of the best interests of the child over parental rights in the child protection
context is an axiomatic proposition in the jurisprudence. As Daley J.F.C. observed in Children's Aid
Society of Halifax v. F. (S.) (1992), 110 N.S.R. (2d) 159 (N.S. Fam. Ct.):
[Child welfare statutes] promot[e] the integrity of the family, but only in circumstances which will
protect the child. When the child cannot be protected as outlined in the [Act] within the family, no
matter how well meaning the family is, then, if its welfare requires it, the child is to be protected
outside the family. [para. 5]
(See also Children's Aid Society of Halifax v. N. (C.M.) (1989), 91 N.S.R. (2d) 232 (N.S. Fam. Ct.),
per Butler J.F.C., at paras. 34-36; Children's Aid Society of Ottawa-Carleton v. H. (L.), [1994] O.J.
No. 2501 (Ont. Prov. Div.) per Guay Prov. J., at para. 38; Children's Aid Society of Ottawa-
Carleton v. L. (D.), [1995] O.J. No. 693 (Ont. Prov. Div.), per Linhares de Sousa Prov. J., at para.
69; F. (B.) v. Children's Aid Society of Kingston (City) & Frontenac (County), 1995 CarswellOnt
2154 (Ont. Prov. Div.) , per Dunbar Prov. J., at para. 13; Children's Aid Society of Brockville Leeds

& Grenville v. C., 2001 CarswellOnt 1504 (Ont. S.C.J.) , per Ratushny J., at para. 15; Children's
Aid Society of Hamilton-Wentworth v. R. (K.), 2003 CarswellOnt 2929 (Ont. Div. Ct.) , per Scime
J., at para. 44; Family, Youth & Child Services of Muskoka v. C. (N.), [2004] O.J. No. 1733 (Ont.
S.C.J.), per Glass J., at para. 28; and N. (A.) v. Saskatchewan (Minister of Social Services) (1988),
68 Sask. R. 24 (Sask. Q.B.).
45 This Court has confirmed that pursuing and protecting the best interests of the child must take
precedence over the wishes of a parent (K. (K.) v. L. (G.), [1985] 1 S.C.R. 87 (S.C.C.); Young v.
Young, [1993] 4 S.C.R. 3 (S.C.C.), Nouveau-Brunswick (Ministre de la santé & des services
communautaires) c. L. (M.), [1998] 2 S.C.R. 534 (S.C.C.)). It also directed in Catholic Children's
Aid Society of Metropolitan Toronto v. M. (C.) , [1994] 2 S.C.R. 165 (S.C.C.), that in child welfare
legislation the "integrity of the family unit" should be interpreted not as strengthening parental
rights, but as "fostering the best interests of children" (p. 191). L'Heureux-Dubé J. cautioned at p.
191 that "the value of maintaining a family unit intact [must be] evaluated in contemplation of what
is best for the child, rather than for the parent".
46 It is true that ss. 1 and 37(3) of the Act make reference to the family, but nothing in them
detracts from the Act's overall and determinative emphasis on the protection and promotion of the
child's best interests, not those of the family. The statutory references to parents and family in the
Act, which the family seeks to rely on to ground proximity, are not stand-alone principles, but fall
instead under the overarching umbrella of the best interests of the child. Those provisions are there
to protect and further the interests of the child, not of the parents and therefore, in my view, cannot
be relied upon for finding a relationship of sufficient proximity. As explained by Professor Nicholas
Bala:
[L]eading Canadian precedents, federal and provincial statutes and international treaties are all
premised on the principle that decisions about children should be based on an assessment of their
best interests. This is a central concept for those who are involved making decisions about children,
not only for judges and lawyers, but also for assessors and mediators.
(N. Bala, "The Best Interests of the Child in the Post-Modernist Era: A Central but Illusive and
Limited Concept" in Special Lectures of the Law Society of Upper Canada 2000: Family Law
(1999), 3.1, at p. 3.1.)
47 Similarly, as Joseph Goldstein, et al. noted in The Best Interests of the Child: The Least
Detrimental Alternative (1996), at p. 88:
... once justification for state intervention has been established, the child's well-being -- not the
parents', the family's, or the child care agency's -- must be determinative. ... That conviction is
expressed in our preference for making a child's interests paramount once her care has become a
legitimate matter for the state to decide. [Emphasis in original.]
48 The factors in s. 37(3), for that reason, are the servants of the paramount duty in s.1 to protect
the best interests of an apprehended child. This is reinforced in s.1(2) which states, in essence, that
family and parental relationships are to be recognized only to the extent that they are "consistent
with the best interests, protection and well being of children".

49 To impose a duty of care towards the child's family on a treatment centre and its social
workers in this context creates a potential conflict with their ability effectively to discharge their
statutory duties. A child in care generally involves "situations in which the care parents provide is
considered so inadequate that direct interference by the state is justified to protect children ... [S]tate
interference through removal of a child from parental care will only be justified if it is proven that
there is a significant risk to the child" (N. Bala "Child Welfare Law in Canada: An Introduction", in
N. Bala et al., eds., Canadian Child Welfare Law (2nd ed. 2004), 1, at pp. 1-2). The finding that
R.D. was a child in need of protection, for example, was made pursuant to s. 37(2)(f) and (h) of the
Act. According to the wording of the Act when the order was made, such a finding meant that "the
child's parent or the person having charge of the child does not provide, or refuses or is unavailable
or unable to consent to, services or treatment to remedy or alleviate" the harm or condition in
question.
50 If a corresponding duty is also imposed with respect to the parents, service providers will be
torn between the child's interests on the one hand, and parental expectations which may be
unrealistic, unreasonable or unrealizable on the other. This tension creates the potential for a
chilling effect on social workers, who may hesitate to act in pursuit of the child's best interests for
fear that their approach could attract criticism -- and litigation -- from the family. They should not
have to weigh what is best for the child on the scale with what would make the family happiest,
finding themselves choosing between aggressive protection of the child and a lawsuit from the
family.
51 I appreciate that the family of a child in care would, understandably, generally wish for the
return of the child. But that cannot always be accommodated. The statutory scheme, in s. 37(3)9,
directs that in assessing the child's best interests, the views and wishes of the child be taken into
account, not those of the family. That does not mean that those views are irrelevant, it means that
the statute envisages that in the case of a child in need of protection, the family's views and wishes
are entitled to less deference than the child's best interests.
52 Even where the goal is the eventual return of the child, it may not always be possible. Neither
the treatment centre nor Mr. Baptiste, for example, could have anticipated what the effect of their
treatment of R.D. would be on her family, nor, in my view, should they necessarily have had the
family in their sights. Their efforts would, by law, have had to be directed at addressing R.D.'s
emotional fragility, not that of her family. Treating a child in distress may or may not result in
returning her to the family, but the fact that she does not return may well represent the result of
successful treatment, not misconduct or negligence.
53 If the choice is between the best interests of the child and the family's wishes, there is, by
statute, no choice. As noted by Sharpe J.A., "once there has been a judicial finding that the child is
in need of protection and must be removed from the custody of the parents, those responsible for
caring for and treating the child must place the child's interests ahead of those of the parents" (para.
75). To impose a duty of care on secure treatment centres and their employees towards both
children and parents would interfere with their ability to fulfill this paramount duty to the children.

54 There is, in addition to the other possibilities for undermining the statutory duty to keep the
child's interests uppermost, another potential conflict. The Syl Apps Secure Treatment Centre and
Mr. Baptiste are providing services to R.D. in a treatment context, a context that invokes medical
paradigms of confidentiality and privacy. Numerous courts have recognized that a doctor does not
owe a duty of care to the parent of his or her patient because that would create a situation of
conflicting duties of care. In P (minors) v. Bedforshire Borough Council, [1994] 2 W.L.R. 554
(Eng. C.A.), a mother's claim against her child's treating psychiatrist where the child had been
apprehended by the local authority, was dismissed on the ground that the psychiatrist did not owe a
duty of care to the mother. Sir Thomas Bingham M.R. explained:
[T]he mother was not in any meaningful sense the psychiatrist's patient. The psychiatrist's duty was
to act in the interests of the child, and that might very well mean acting in a way that would be
adverse to the personal interests of the mother; she was concerned with those interests only to the
extent that they could have an impact on the interests of the child. In this situation of potential
conflict, I do not think the psychiatrist can arguably be said to have owed a duty of care to the
mother. ... [Emphasis added; p. 574.] (See also Sullivan v. Moody (2001), 207 C.L.R. 562, [2001]
H.C.A. 59 (Australia H.C.).)
55 Similarly, in G. (I.) v. Rusch (1999), 179 D.L.R. (4th) 336 (B.C. S.C. [In Chambers]), the
British Columbia Supreme Court struck a claim against a counsellor brought by a family of a
patient who alleged that her family had sexually abused her. Beames J. indicated that if the
counsellor owed a duty of care to the family in that case it "would put [the counsellor] in direct
conflict with his primary duty which he clearly owed to his patient" (para. 17). And in S. (P.) v. B.
(S.K.), [1997] O.J. No. 4089 (Ont. Gen. Div.), Molloy J. refused to find that a doctor owed a duty of
care to the parents of a child who complained of sexual abuse since "it is to that patient that she
owed a duty of care" and "there can be no duty of care owed to the plaintiff" since it would be
contrary to the doctor's professional obligation to protect the best interest of the child (para. 6).
56 Recognizing a duty to parents in this context could result in conflicting duties in the provision
of medical treatment to children who have been removed from their parents'custody. In an
environment like a secure treatment centre, different professionals, including doctors and social
workers, may be involved in a child's therapeutic care. In the present case, both the social worker,
Mr. Baptiste, and Dr. Meen were responsible for treating R.D. Mr. Baptiste was, in fact, appointed
by Dr. Meen. It is very difficult to see how these professionals could all effectively work together if
some of them owed a duty other than to the child/patient.
57 Nor can the family rely on the court orders to ground proximity. Their claim is based, at least
in part, on the premise that, contrary to the court orders, R.D. was never reintegrated into her
family. Reintegration is not what the court ordered. The order of September 26, 1995, for example,
provided that "[t]here will be a monthly meeting arranged between the Society, service providers or
their representatives and parents" and that "[a]ttempts will be made during the period of Society
Wardship to reintegrate the family where possible" (emphasis added). This is not an uncommon
term given the ostensibly temporary nature of such orders.
58 There is, in any event, no tort for breach of a court order, which is effectively what the
members of R.D.'s family appear to be seeking. The parents were present at every court hearing,

expressed their positions, and, at each stage, the court, culminating in Crown Wardship, concluded
that it was best for their adolescent daughter not to be returned to her parents. This did not represent
a breach of anyone's duty to the family, it represented the fulfilment of the court's obligations, based
on the evidence, to protect the child's best interests.
59 The conclusion that there is no proximity is reinforced when one considers two additional
reflections of legislative policy. The first is that the Act provides a remedy for families seeking to
challenge the way their child is treated. If R.D.'s family felt that the Syl Apps Secure Treatment
Centre and Mr. Baptiste were not abiding by the terms of the court order during the period of R.D.'s
society wardship, the statute expressly gave them a remedy in addition to the right to appeal. At the
time R.D. was in care, s. 64(4) and (7) of the Act provided that where a child was the subject of a
society wardship order, a parent of the child could make an application for review of a child's status
every six months. Section 64(8) further provided that if a major element of the plan for the child's
care in the court order was not being carried out, an exception could be made to the six-month
period restriction on status review applications.
60 Secondly, there is a clear legislative intent to protect those working in the child protection
field from liability for the good faith exercise of their statutory duty. This is reflected in three
statutory immunity provisions. Section 15(6) of the Act states that "[n]o action shall be instituted
against an officer or employee of a [Children's Aid] society for an act done in good faith in the
execution or intended execution of the person's duty or for an alleged neglect or default in the
execution in good faith of the person's duty."
61 Section 4(3) of the Ministry of Community and Social Services Act, R.S.O. 1990, c. M.20,
contains similar protection against personal liability for employees of the Ministry of Community
and Social Services. At the relevant time, the Syl Apps Secure Treatment Centre was operated by
the Ministry of Community and Social Services. Moreover, s. 142 of the Courts of Justice Act,
R.S.O. 1990, c. C.43, states that "[a] person is not liable for any act done in good faith in
accordance with an order or process of a court in Ontario".
62 These immunity provisions lend further support to the conclusion that there is no proximity in
the relationship between the family of a child in care and those directed by a court to protect that
child's best interests. There is, as a result, no basis for recognizing a prima facie duty of care
towards the family on the part of the Syl Apps Secure Treatment Centre or Mr. Baptiste.
63 Although this conclusion makes further assessment unnecessary, another policy consideration
confirms that imposing a legal duty of care on the service providers towards the family members of
apprehended children would be unwise. Recognizing such a duty in this context would create the
possibility of parallel proceedings, which could lead to a relitigation of matters already determined
at the child protection hearing. This would undermine the child protection scheme, result in
unnecessary public expense, and inhibit child protection workers from strategies promoting a child's
best interests for fear of subsequent litigation. It is difficult to see how any of these potential
consequences are in the interests of the legal system or of the public.
64 Child protection work is difficult, painful and complex. Catering to a child's best interests in
this context means catering to a vulnerable group at its most vulnerable. Those who do it, do so

knowing that protecting the child's interests often means doing so at the expense of the rest of the
family. Yet their statutory mandate is to treat the child's interests as paramount. They must be free
to execute this mandate to the fullest extent possible. The result they seek is to restore the child, not
the family. Where the duties to the child have been performed in accordance with the statute, there
is no ancillary duty to accommodate the family's wish for a different result, a different result
perhaps even the child protection worker had hoped for.
65 Because there is no legal duty of care owed by the treatment centre and Mr. Baptiste to R.D.'s
family, there is no reasonable cause of action against them disclosed by the statement of claim. No
amount of evidence would revise this legal conclusion and, as a result, a trial to determine whether
the family is entitled to the damages it seeks would not be justified.
66 Accordingly, I would allow the appeal and dismiss the action with costs.
Appeal allowed with costs.

Stewart v Pettie
[1995] 1 SCR 131
[After an evening of dinner and live theatre at the Mayfield Inn, a passenger in a car driven by her
brother was seriously injured when he crashed the vehicle after losing control on slippery road
conditions. His driving had been appropriate to the conditions. The driver's blood alcohol level,
however, was well above the legal limit an hour after the accident. He had been drinking throughout
the evening and the commercial host was aware of his condition when he left in that the same
waitress had served him all evening and had kept a running total of his tab. The passengers in the
car had allowed the driver to drive, notwithstanding the availability of sober drivers in the party. In
addition, the injured woman knew how much her brother had had to drink and how he reacted when
intoxicated. No evidence was tendered as to what she or the other passengers would have done had
the commercial host intervened.
At issue here was whether the commercial host had met the standard of care required of a vendor of
alcohol and whether it was negligent in failing to take any steps to ensure that the driver did not
drive on leaving its premises.]
The judgment of the Court was delivered by

1 MAJOR J.:-- ….
20 This Court has not previously considered a case involving the liability of a commercial host
where the plaintiff was not the person who became inebriated in the defendant's establishment. In
both Jordan House Ltd. v. Menow, supra, and Crocker v. Sundance Northwest Resorts Ltd., [1988]
1 S.C.R. 1186, it was the plaintiff who became drunk and as a consequence was unable to look after
himself….
22 The present appeal is one in which a third party is claiming against the commercial host. This
raises the question of whether the establishment owed any duty of care to that third party. If a duty
of care is found to exist, then it is necessary to consider what standard of care was necessary and
whether that standard was met….
Duty of Care
24 The "modern" approach to determining the existence of a duty of care is that established by
the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728, and adopted by
this Court in City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2, at pp. 10-11. This test, as established
by Wilson J. in Kamloops, paraphrasing Anns is:
1. is there a sufficiently close relationship between the parties . . . so that, in the reasonable
contemplation of the authority, carelessness on its part might cause damage to that person?
If so,

2. are there any considerations which ought to negative or limit (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 of it may
give rise?
25 This approach has been approved in Just v. British Columbia, [1989] 2 S.C.R. 1228, and Hall
v. Hebert, [1993] 2 S.C.R. 159. The basis of the test is the historic case of Donoghue v. Stevenson,
[1932] A.C. 562, which established the "neighbour principle": that actors owe a duty of care to
those whom they ought reasonably have in contemplation as being at risk when they act.
[His Lordship then reviewed Laskin J.’s decision in Jordan House Ltd. v. Menow.]
28 It is a logical step to move from finding that a duty of care is owed to patrons of the bar to
finding that a duty is also owed to third parties who might reasonably be expected to come into
contact with the patron, and to whom the patron may pose some risk. It is clear that a bar owes a
duty of care to patrons, and as a result, may be required to prevent an intoxicated patron from
driving where it is apparent that he intends to drive. Equally such a duty is owed, in that situation, to
third parties who may be using the highways. In fact, it is the same problem which creates the risk
to the third parties as creates the risk to the patron. If the patron drives while intoxicated and is
involved in an accident, it is only chance which results in the patron being injured rather than a third
party. The risk to third parties from the patron's intoxicated driving is real and foreseeable.
29 In this case, there was a sufficient degree of proximity between Mayfield Investments Ltd. and
Gillian Stewart that a duty of care existed between them. The more difficult question is what was
the standard of care and whether or not it was breached.
30 Before moving to the standard of care test, two points deserve comment. In so far as the
existence of a duty of care is concerned it is irrelevant that Gillian Stewart was a passenger in the
vehicle driven by the patron rather than the passenger or driver of another vehicle, other than for
ancillary purposes such as contributory negligence. The duty of care arises because Gillian Stewart
was a member of a class of persons who could be expected to be on the highway. It is this class of
persons to whom the duty is owed.
31 On the second point, the respondents argue that Mayfield Investments Ltd. owed two duties of
care to Gillian Stewart: first, not to serve Stuart Pettie past the point of intoxication, and second,
having served him past the point of intoxication, to take positive steps to ensure that he did not drive
a car. The respondents say that Mayfield breached both duties, and therefore should be liable to
Gillian Stewart for her injuries.
32 I believe this argument confuses the existence of the duty of care with the standard of care
required of Mayfield. The question of whether a duty of care exists is a question of the relationship
between the parties, not a question of conduct. The question of what conduct is required to satisfy
the duty is a question of the appropriate standard of care….
Standard of Care
34 Laskin J. said in Jordan House Ltd. v. Menow, supra, at p. 247, "The common law assesses
liability for negligence on the basis of breach of a duty of care arising from a foreseeable and
unreasonable risk of harm to one person created by the act or omission of another." The respondents
argued, and the Court of Appeal agreed, that Mayfield was negligent because they (a) served Stuart

Pettie past the point of intoxication, and (b) failed to take any steps to prevent harm from coming to
himself or a third person once he was intoxicated.
35 I doubt that any liability can flow from the mere fact that Mayfield may have over-served
Pettie. To hold that over-serving Pettie per se is negligent is to ignore the fact that injury to a class
of persons must be foreseeable as a result of the impugned conduct. I fail to see how the mere fact
that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties. It is only
if there is some foreseeable risk of harm to the patron or to a third party that Mayfield and others in
their position will be required to take some action. This standard of care is the second "duty"
identified by the respondents and the Court of Appeal.
36 It is true that applicable liquor control legislation in Alberta, and across the country, prohibits
serving alcohol to persons who are apparently intoxicated. Counsel for the respondents pressed that
point in argument. There are, however, two problems with this argument. The first is that it is not
clear that there was any violation of liquor control legislation in this case, given the fact that Pettie
was apparently not exhibiting any signs of intoxication. Moreover, even if it could be said that
Mayfield was in violation of legislation, this fact alone does not ground liability: The Queen in right
of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Without a reasonably foreseeable risk
of harm to him or a third party, the fact of over-serving Pettie is an innocuous act. Therefore,
liability on the part of Mayfield, if it is to be found, must be in their failure to take any affirmative
action to prevent the reasonably foreseeable risk to Gillian Stewart.
37 Historically, the courts have been reluctant to impose liability for a failure by an individual to
take some positive action. This reluctance has been tempered in recent years where the relationship
between the parties is such that the imposition of such an obligation has been warranted. In those
cases, there has been some "special relationship" between the parties warranting the imposition of a
positive duty. Jordan House Ltd. v. Menow, supra, was such a case.
38 A similar positive obligation was found to exist in Crocker v. Sundance Northwest Resorts
Ltd….
41 It is apparent from Wilson J.'s reasoning [in Crocker] that there are two questions to be
answered. The first is whether the defendant was required, in the circumstances, to take any positive
steps at all. If this is answered in the affirmative, the next question is whether the steps taken by the
defendants were sufficient to discharge the burden placed on them.
42 There is no dispute that neither the appellant nor anyone on its behalf took any steps to ensure
that Stuart Pettie did not drive. Mayfield suggested that they remained "vigilant" and maintained
"careful observation" of Stuart Pettie, and that this should be sufficient. However, remaining
"vigilant" is not the same as taking positive steps, and it is common ground that none of Mayfield's
employees made inquires about whether Stuart Pettie intended to drive or suggested any alternative.
Therefore, if Mayfield is to avoid liability, it will have to be on the basis that, on the facts of this
case, Mayfield had no obligation to take any positive steps to ensure that Stuart Pettie did not
drive….
47 There is little difficulty with the proposition, supported by the above cases, that the necessary
"special relationship" exists between vendors of alcohol and the motoring public. This is no more
than a restatement of the fact, already mentioned, that a general duty of care exists between
establishments in Mayfield's position and persons using the highways.

48 I do, however, have difficulty accepting the proposition that the mere existence of this "special
relationship", without more, permits the imposition of a positive obligation to act. Every person
who enters a bar or restaurant is in an invitor-invitee relationship with the establishment, and is
therefore in a "special relationship" with that establishment. However, it does not make sense to
suggest that, simply as a result of this relationship, a commercial host cannot consider other relevant
factors in determining whether in the circumstances positive steps are necessary.
49 The existence of this "special relationship" will frequently warrant the imposition of a positive
obligation to act, but the sine qua non of tortious liability remains the foreseeability of the risk.
Where no risk is foreseeable as a result of the circumstances, no action will be required, despite the
existence of a special relationship….
50 One of the primary purposes of negligence law is to enforce reasonable standards of conduct
so as to prevent the creation of reasonably foreseeable risks. In this way, tort law serves as a
disincentive to risk-creating behaviour. To impose liability even where the risk which materialized
was not reasonably foreseeable is to lay a portion of the loss at the feet of a party who has, in the
circumstances, acted reasonably. Tort law does not require the wisdom of Solomon. All it requires
is that people act reasonably in the circumstances….
51 Obviously, the fact that tragedy has befallen Gillian Stewart cannot, in itself, lead to a finding
of liability on the part of Mayfield. The question is whether, before 11:00 p.m. on December 8,
1985, the circumstances were such that a reasonably prudent establishment should have foreseen
that Stuart Pettie would drive, and therefore should have taken steps to prevent this.
52 I agree with the Court of Appeal that Mayfield cannot escape liability simply because Stuart
Pettie was apparently not exhibiting any visible signs of intoxication. The waitress kept a running
tab, and knew that Pettie had consumed 10 to 14 ounces of alcohol over a five-hour period. On the
basis of this knowledge alone, she either knew or should have known that Pettie was becoming
intoxicated, and this is so whether or not he was exhibiting visible symptoms.
53 However, I disagree with the Court of Appeal that the presence of the two sober women at the
table cannot act to relieve Mayfield of liability. Laskin J. in Jordan House Ltd. v. Menow, supra,
made it clear that the hotel's duty to Menow in that case could have been discharged by making sure
"that he got home safely by taking him under its charge or putting him under the charge of a
responsible person . . ." (p. 249, emphasis added). Had Pettie been alone and intoxicated, Mayfield
could have discharged its duty as established in Jordan House Ltd. v. Menow by calling Pettie's
wife or sister to take charge of him. How, then, can Mayfield be liable when Pettie was already in
their charge, and they knew how much he had had to drink? While it is technically true that Stuart
Pettie was not "put into" the care of his sober wife and sister, this is surely a matter of semantics. He
was already in their care, and they knew how much he had to drink. It is not reasonable to suggest
in these circumstances that Mayfield had to do more.
54 Mayfield would have known that the group arrived together, that they spent the evening
together, and that they left together. In addition, they would have known that they were part of the
Dispensaries Limited company Christmas party, and that two sober adults were present at the table
when the drinks were ordered and consumed. In the circumstances, it was reasonable for Mayfield
to assume that the four people at the table were not travelling separately, and it was reasonable for
Mayfield to assume that one of the two sober people who were at the table would either drive or
find alternative transportation.

55 The trial judge was correct in concluding on these facts that it was not necessary for Mayfield
to enquire who was driving or that it would have made any difference if they had. It was not
reasonably foreseeable that Stuart Pettie would be driving when a sober wife and sister were present
with full knowledge of the circumstances.
56 I agree that establishments which serve alcohol must either intervene in appropriate
circumstances or risk liability, and that this liability cannot be avoided where the establishment has
intentionally structured the environment in such a way as to make it impossible to know whether
intervention is necessary….
57 However that was not the situation here. Mayfield was aware of the circumstances in which
Stuart Pettie was drinking. In the environment of the case at bar, it was not reasonable for them to
intervene.
58 On the facts of this case I conclude that Mayfield Investments Ltd. did not breach the duty of
care they owed to Gillian Stewart. On this basis I would allow the appeal.
[His Lordship also found in the alternative that the plaintiffs had not discharged their burden of
proving a causal link between any failure on the part of Mayfield to intervene and the injuries
suffered by the plaintiff Gillian Stewart.]

Childs v Desormeaux
[2006] 1 SCR 643
THE CHIEF JUSTICE —
1. Introduction
1. A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an
accident in which another person is injured. Is the host liable to the person injured? I conclude that
as a general rule, a social host does not owe a duty of care to a person injured by a guest who has
consumed alcohol and that the courts below correctly dismissed the appellants’ action.
2. Facts
2. This case arises from a tragic car accident in Ottawa in the early hours of January 1, 1999. At
1:30 a.m., after leaving a party hosted by Dwight Courrier and Julie Zimmerman, Desmond
Desormeaux drove his vehicle into oncoming traffic and collided head-on with a vehicle driven by
Patricia Hadden. One of the passengers in Ms. Hadden’s car was killed and three others seriously
injured, including Zoe Childs, who was then a teenager. Ms. Childs’ spine was severed and she has
since been paralyzed from the waist down. Mr. Desormeaux and the two passengers in his car were
also injured.
3. Mr. Desormeaux was impaired at the time of the accident. The trial judge found that he had
probably consumed 12 beers at the party over two and a half hours, producing a blood-alcohol
concentration of approximately 235 mg per 100 ml when he left the party and 225 mg per 100 ml at
the time of the accident — concentrations well over the legal limit for driving of 80 mg per 100 ml.
Mr. Desormeaux pleaded guilty to a series of criminal charges arising from these events and
received a 10-year sentence.
4. The party hosted by Dwight Courrier and Julie Zimmerman at their home was a “BYOB” (Bring
Your Own Booze) event. The only alcohol served by the hosts was three-quarters of a bottle of
champagne in small glasses at midnight. Mr. Desormeaux was known to his hosts to be a heavy
drinker. The trial judge heard evidence that when Mr. Desormeaux walked to his car to leave, Mr.
Courrier accompanied him and asked, “Are you okay, brother?” Mr. Desormeaux responded “No
problem”, got behind the wheel and drove away with two passengers.
5. The trial judge found that a reasonable person in the position of Mr. Courrier and Ms.
Zimmerman would have foreseen that Mr. Desormeaux might cause an accident and injure someone
else. However, the prima facie duty of care this gave rise to was negatived, in his view, by policy
considerations involving the social and legal consequences of imposing a duty of care on social
hosts to third parties injured by their guests, government regulation of alcohol sale and use and the
preferability of a legislative, rather than a judicial, solution. Accordingly, the trial judge dismissed
the action ((2002), 217 D.L.R. (4th) 217).

6 .The Court of Appeal for Ontario dismissed Ms. Childs’ appeal. In its view, the circumstances did
not disclose even a prima facie duty of care. Unless social hosts are actively implicated in creating
the risk that gives rise to the accident, they cannot be found liable. Here, the social hosts “did not
assume control over the supply or service of alcohol, nor did they serve alcohol to [Mr.]
Desormeaux when he was visibly impaired” ((2004), 71 O.R. (3d) 195, at para. 75). Unlike
commercial hosts, they were under no statutory duty to monitor the consumption of alcohol or to
control the premises where alcohol was served, nor did anyone rely on them to do so. The Court,
per Weiler J.A., concluded (at para. 75):
... I cannot accept the proposition that by merely supplying the venue of a BYOB party, a host
assumes legal responsibility to third party users of the road for monitoring the alcohol
consumed by guests. ... It would not be just and fair in the circumstances to impose a duty of
care.
7. Ms. Childs appeals to this Court and asks that we reverse the courts below and conclude that Mr.
Courrier and Ms. Zimmerman, as social hosts of the party where Mr. Desormeaux was drinking, are
liable for the injuries she suffered.
8. The central legal issue raised by this appeal is whether social hosts who invite guests to an event
where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated
guests. It is clear that commercial hosts, like bars or clubs, may be under such a duty. This is the
first time, however, that this Court has considered the duty owed by social hosts to plaintiffs like
Ms. Childs.
3. Analysis
3.1 The General Test for a Duty of Care

9. Before the decision of the House of Lords in Donoghue v. Stevenson, [1932] A.C. 562, the law
governing tort liability for wrongs to others was a complex of categories derived from cases decided
over the centuries. In Donoghue v. Stevenson, the House of Lords replaced the category approach
with a principled approach. It recognized the existence of a “general conception of relations giving
rise to a duty of care, of which the particular cases found in the books are but instances” (p. 580, per
Lord Atkin). The general concept of a duty owed to those whom one might injure proved both
powerful and practical. However, it brought with it a question — a question we wrestle with to this
day. How do we define the persons to whom the duty is owed?
10. Lord Atkin recognized this problem in Donoghue v. Stevenson. He accepted that negligence is
based on a “general public sentiment of moral wrongdoing for which the offender must pay”, but
distinguished legal duties from moral obligation: “... acts or omissions which any moral code would
censure cannot in a practical world be treated so as to give a right to every person injured by them
to demand relief” (p. 580). My legal duty, he said, extends to my “neighbour”. […] This concept,
sometimes referred to as proximity, remains the foundation of the modern law of negligence.
11. In Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Lord Wilberforce
proposed a two-part test for determining whether a duty of care arises. […] The two-stage approach

of Anns was adopted by this Court in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2, at pp. 10-11,
and recast as follows:
(1) is there “a sufficiently close relationship between the parties” or “proximity” to justify
imposition of a duty and, if so,
(2) are there policy considerations which ought to negative or limit the scope of the duty, the
class of persons to whom it is owed or the damages to which breach may give rise?
12. In Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, the Court affirmed the
Anns test and spoke, per Iacobucci J., of three stage-one requirements: reasonable foreseeability;
sufficient proximity; and the absence of overriding policy considerations which negate a prima facie
duty established by foreseeability and proximity: para. 52. Some cases speak of foreseeability
being an element of proximity where “proximity” is used in the sense of establishing a relationship
sufficient to give rise to a duty of care: see e.g. Kamloops. Odhavji, by contrast, sees foreseeability
and proximity as separate elements at the first stage; “proximity” is here used in the narrower sense
of features of the relationship other than foreseeability. There is no suggestion that Odhavji was
intended to change the Anns test; rather, it merely clarified that proximity will not always be
satisfied by reasonable foreseeability. What is clear is that at stage one, foreseeability and factors
going to the relationship between the parties must be considered with a view to determining whether
a prima facie duty of care arises. At stage two, the issue is whether this duty is negated by other,
broader policy considerations.
13. The plaintiff bears the ultimate legal burden of establishing a valid cause of action, and hence a
duty of care: Odhavji. However, once the plaintiff establishes a prima facie duty of care, the
evidentiary burden of showing countervailing policy considerations shifts to the defendant,
following the general rule that the party asserting a point should be required to establish it.
14. The courts in this case applied these general principles and concluded, for different reasons, that
they did not give rise to a duty of care on social hosts of parties where alcohol is served, to members
of the public who may be injured by an intoxicated guest’s conduct. The trial judge found that the
first stage of the test had been met, but that policy considerations at stage two negated a duty of
care. The Court of Appeal, by contrast, found that the first stage of establishing a prima facie duty
of care had not been met, making it unnecessary to go on to the second stage of the Anns test.
3.2 Is the Proposed Duty Novel?

15. A preliminary point arises from a nuance on the Anns test developed in Cooper v. Hobart,
[2001] 3 S.C.R. 537, 2001 SCC 79. The Court in Cooper introduced the idea that as the case law
develops, categories of relationships giving rise to a duty of care may be recognized, making it
unnecessary to go through the Anns analysis. The reference to categories simply captures the basic
notion of precedent: where a case is like another case where a duty has been recognized, one may
usually infer that sufficient proximity is present and that if the risk of injury was foreseeable, a
prima facie duty of care will arise. On the other hand, if a case does not clearly fall within a
relationship previously recognized as giving rise to a duty of care, it is necessary to carefully
consider whether proximity is established. Following Cooper, the first issue raised in this case is
whether claims against private hosts for alcohol-related injuries caused by a guest constitute a new
category of claim. Like the courts below, I conclude that it does.

16. Canadian law does not provide a clear answer to the question of whether people who host social
events where alcohol is served owe a duty of care to third-party members of the public who may be
harmed by guests who leave the event inebriated. The closest comparison is that of commercial
alcohol providers, who have been held to owe a duty to third-party members of the public who are
injured as a result of the drunken driving of a patron: Stewart v. Pettie, [1995] 1 S.C.R. 131.
Although the action was dismissed on the facts, Stewart affirmed that a special relationship existed
between taverns and the motoring public that could require the former to take positive steps to
protect the latter.
17. The situation of commercial hosts, however, differs from that of social hosts. As discussed, in
determining whether a duty of care arises, the focus is on the nature of the relationship between the
parties. Three differences in the plaintiff-defendant relationship suggest that the possibility of a
duty of care on commercial hosts does not automatically translate into a duty of care for social
hosts.
18 .First, commercial hosts enjoy an important advantage over social hosts in their capacity to
monitor alcohol consumption. As a result, not only is monitoring relatively easy for a commercial
host, but it is also expected by the host, patrons and members of the public. In fact, commercial
hosts have a special incentive to monitor consumption because they are being paid for service.
Patrons expect that the number of drinks they consume will be monitored, if only to ensure that they
are asked to pay for them. Furthermore, regulators can require that servers undertake training to
ensure that they understand the risks of over-service and the signs of intoxication (see e.g. Liquor
Licence Act, R.R.O. 1990, Reg. 719). This means that not only is monitoring inherently part of the
commercial transaction, but that servers can generally be expected to possess special knowledge
about intoxication.
19. Second, the sale and consumption of alcohol is strictly regulated by legislatures, and the rules
applying to commercial establishments suggest that they operate in a very different context than
private-party hosts. This regulation is driven by public expectations and attitudes towards
intoxicants, but also serves, in turn, to shape those expectations and attitudes. In Ontario, where
these facts occurred, the production, sale and use of alcohol is regulated principally by the regimes
established by the Liquor Control Act, R.S.O. 1990, c. L.18, and the Liquor Licence Act, R.S.O.
1990, c. L.19. The latter Act is wide-ranging and regulates how, where, by and to whom alcohol
can be sold or supplied, where and by whom it can be consumed and where intoxication is
permitted and where it is not.
20. These regulations impose special responsibilities on those who would profit from the supply of
alcohol. This is clear by the very existence of a licensing scheme, but also by special rules
governing the service of alcohol and, as noted above, special training that may be required. Clearly,
the sale of alcohol to the general public is understood as including attendant responsibilities to
reduce the risk associated with that trade.
21. The importance of this regulatory environment does not relate to the statutory requirements per
se, but what they demonstrate about the nature of commercial alcohol sales and about the
expectations of purveyors, patrons and the public. Selling alcohol is a carefully regulated industry.

The dangers of over-consumption, or of consumption by young or otherwise vulnerable persons,
means that its sale and service in commercial settings is controlled. It is not treated like an ordinary
commodity sold in retail stores. The public expects that in addition to adherence to regulatory
standards, those who sell alcohol to the general public take additional steps to reduce the associated
risks. Furthermore, patrons are aware that these special responsibilities have very real and visible
manifestations. The imposition of a “cut-off” at the bar is understood, and expected, as part of the
institutionalization of these responsibilities. Similarly, in many establishments, “bouncers” both
enforce admission and assist other members of the staff who might have to deal with patrons who
may have become intoxicated. These features have no equivalent in the non-commercial context.
A party host has neither an institutionalized method of monitoring alcohol consumption and
enforcing limits, nor a set of expectations that would permit him or her to easily do so.
22. Third, the contractual nature of the relationship between a tavern keeper serving alcohol and a
patron consuming it is fundamentally different from the range of different social relationships that
can characterize private parties in the non-commercial context. The appellants argue that there is
“nothing inherently special” about profit making in the law of negligence. In the case of alcohol
sales, however, it is clear that profit making is relevant. Unlike the host of a private party,
commercial alcohol servers have an incentive not only to serve many drinks, but to serve too many.
Over-consumption is more profitable than responsible consumption. The costs of over-
consumption are borne by the drinker him or herself, taxpayers who collectively pay for the added
strain on related public services and, sometimes tragically, third parties who may come into contact
with intoxicated patrons on the roads. Yet the benefits of over-consumption go to the tavern keeper
alone, who enjoys large profit margins from customers whose judgment becomes more impaired the
more they consume. This perverse incentive supports the imposition of a duty to monitor alcohol
consumption in the interests of the general public.
23. The differences just discussed mean that the existence of a duty on the part of commercial
providers of alcohol cannot be extended by simple analogy to the hosts of a private party. The duty
proposed in this case is novel. We must therefore ask whether a duty of care is made out on the
two-stage Anns test.
3.3 Stage One: A Prima Facie Duty?

24. Applying the first stage of the Anns test requires, as noted above, an examination of the
relationship between the parties to determine if it meets the requirement of sufficient proximity.
The question is: What, if anything, links party hosts to third-party users of the highway?
25. The law of negligence not only considers the plaintiff’s loss, but explains why it is just and fair
to impose the cost of that loss on the particular defendant before the court. The proximity
requirement captures this two-sided face of negligence.
26. I conclude that the necessary proximity has not been established and, consequently, that social
hosts of parties where alcohol is served do not owe a duty of care to public users of highways.
First, the injury to Ms. Childs was not reasonably foreseeable on the facts found by the trial judge.
Second, even if foreseeability were established, no duty would arise because the wrong alleged is a
failure to act or nonfeasance in circumstances where there was no positive duty to act.

3.3.1 Foreseeability
27. Ms. Childs argues that the parties are linked by the foreseeability of physical harm due to the
manner in which the party hosts exercised “control or influence over” the party at which Mr.
Desormeaux was drinking.
28. The question of foreseeability is complicated by ambiguity in the findings of the trial judge.
The trial judge found that Mr. Desormeaux would be showing “obvious signs of impairment” (at
para. 73), but did not find that the hosts in the circumstances knew, or ought to have known, that
Mr. Desormeaux was too drunk to drive. The risks of impaired driving, and their consequences for
motorists and their passengers, are well known. However, if there is no finding that the hosts knew,
or ought to have known, that the guest who was about to drive was impaired, how can it be said that
they should have foreseen that allowing him to drive might result in injury to other motorists?
29. Instead of finding that the hosts ought reasonably to have been aware that Mr. Desormeaux was
too drunk to drive, the trial judge based his finding that the hosts should have foreseen injury to
motorists on the road on problematic reasoning. He noted that the hosts knew that Mr. Desormeaux
had gotten drunk in the past and then driven. He inferred from this that they should have foreseen
that unless Mr. Desormeaux’s drinking at the party was monitored, he would become drunk, get
into his car and drive onto the highway. The problem with this reasoning is that a history of alcohol
consumption and impaired driving does not make impaired driving, and the consequent risk to other
motorists, reasonably foreseeable. The inferential chain from drinking and driving in the past to
reasonable foreseeability that this will happen again is too weak to support the legal conclusion of
reasonable foreseeability — even in the case of commercial hosts, liability has not been extended by
such a frail hypothesis.
30. Ms. Childs points to the findings relating to the considerable amount of alcohol Mr. Desormeaux
had consumed and his high blood-alcohol rating, coupled with the fact that Mr. Courrier
accompanied Mr. Desormeaux to his car before he drove away, and asks us to make the finding of
knowledge of inebriation that the trial judge failed to make. The problem here is the absence of any
evidence that Mr. Desormeaux displayed signs of intoxication during this brief encounter. Given
the absence of evidence that the hosts in this case in fact knew of Mr. Desormeaux’s intoxication
and the fact that the experienced trial judge himself declined to make such a finding, it would not be
proper for us to change the factual basis of this case by supplementing the facts on this critical
point. I conclude that the injury was not reasonably foreseeable on the facts established in this case.
3.3.2 Failure to Act: Nonfeasance Versus Misfeasance

31. Foreseeability is not the only hurdle Ms. Childs’ argument for a duty of care must surmount.
“Foreseeability does not of itself, and automatically, lead to the conclusion that there is a duty of
care”: G. H. L. Fridman, The Law of Torts in Canada (2nd ed. 2002), at p. 320. Foreseeability
without more may establish a duty of care. This is usually the case, for example, where an overt act
of the defendant has directly caused foreseeable physical harm to the plaintiff: see Cooper.
However, where the conduct alleged against the defendant is a failure to act, foreseeability alone
may not establish a duty of care. In the absence of an overt act on the part of the defendant, the
nature of the relationship must be examined to determine whether there is a nexus between the
parties. Although there is no doubt that an omission may be negligent, as a general principle, the
common law is a jealous guardian of individual autonomy. Duties to take positive action in the face

of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has
become a danger to others, does not itself impose any kind of duty on those in a position to become
involved.
32. In this case, we are concerned not with an overt act of the social hosts, but with their alleged
failure to act. The case put against them is that they should have interfered with the autonomy of
Mr. Desormeaux by preventing him from drinking and driving. It follows that foreseeability alone
would not establish a duty of care in this case.
33. The appellants’ argument that Mr. Courrier and Ms. Zimmerman committed positive acts that
created, or contributed to, the risk cannot be sustained. It is argued that they facilitated the
consumption of alcohol by organizing a social event where alcohol was consumed on their
premises. But this is not an act that creates risk to users of public roads. The real complaint is that
having organized the party, the hosts permitted their guest to drink and then take the wheel of an
automobile.
34. A positive duty of care may exist if foreseeability of harm is present and if other aspects of the
relationship between the plaintiff and the defendant establish a special link or proximity. Three
such situations have been identified by the courts. They function not as strict legal categories, but
rather to elucidate factors that can lead to positive duties to act. These factors, or features of the
relationship, bring parties who would otherwise be legal strangers into proximity and impose
positive duties on defendants that would not otherwise exist.
35. The first situation where courts have imposed a positive duty to act is where a defendant
intentionally attracts and invites third parties to an inherent and obvious risk that he or she has
created or controls: Hendricks v. The Queen, [1970] S.C.R. 237; Horsley v. MacLaren, [1972]
S.C.R. 441; Arnold v. Teno, [1978] 2 S.C.R. 287; and Crocker v. Sundance Northwest Resorts Ltd.,
[1988] 1 S.C.R. 1186. For example, it has been held that a boat captain owes a duty to take
reasonable care to rescue a passenger who falls overboard (Horsley) and that the operator of a
dangerous inner-tube sliding competition owes a duty to exclude people who cannot safely
participate (Crocker). These cases turn on the defendant’s causal relationship to the origin of the
risk of injury faced by the plaintiff or on steps taken to invite others to subject themselves to a risk
under the defendant’s control. If the defendant creates a risky situation and invites others into it,
failure to act thereafter does not immunize the defendant from the consequences of its acts. These
cases are akin to the positive and continuing duty of manufacturers or transferors of goods to warn
of inherently dangerous products or dangerous uses of safe products: Lambert v. Lastoplex
Chemicals Co., [1972] S.C.R. 569; Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634.
36. The second situation where a positive duty of care has been held to exist concerns paternalistic
relationships of supervision and control, such as those of parent-child or teacher-student: Dziwenka
v. The Queen in right of Alberta, [1972] S.C.R. 419; Bain v. Board of Education (Calgary) (1993),
146 A.R. 321 (Q.B.). The duty in these cases rests on the special vulnerability of the plaintiffs and
the formal position of power of the defendants. The law recognizes that the autonomy of some
persons may be permissibly violated or restricted, but, in turn, requires that those with power
exercise it in light of special duties. In the words of Virtue J. in Bain, in the context of a teacher-
student relationship, “[t]hat right of control carries with it a corresponding duty to take care for the

safety of, and to properly supervise the student, whether he or she is a child, an adolescent or an
adult” (para. 38).
37. The third situation where a duty of care may include the need to take positive steps concerns
defendants who either exercise a public function or engage in a commercial enterprise that includes
implied responsibilities to the public at large: Dunn v. Dominion Atlantic Railway Co. (1920), 60
S.C.R. 310; Jordan House Ltd. v. Menow, [1974] S.C.R. 239; Jane Doe v. Metropolitan Toronto
(Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487 (Gen. Div.). In these cases, the
defendants offer a service to the general public that includes attendant responsibilities to act with
special care to reduce risk. Where a defendant assumes a public role, or benefits from offering a
service to the public at large, special duties arise. The duty of a commercial host who serves
alcohol to guests to act to prevent foreseeable harm to third-party users of the highway falls into this
category: Stewart v. Pettie.
38. Running through all of these situations is the defendant’s material implication in the creation of
risk or his or her control of a risk to which others have been invited. The operator of a dangerous
sporting competition creates or enhances the risk by inviting and enabling people to participate in an
inherently risky activity. It follows that the operator must take special steps to protect against the
risk materializing. In the example of the parent or teacher who has assumed control of a vulnerable
person, the vulnerability of the person and its subjection to the control of the defendant creates a
situation where the latter has an enhanced responsibility to safeguard against risk. The public
provider of services undertakes a public service, and must do so in a way that appropriately
minimizes associated risks to the public.
39. Also running through the examples is a concern for the autonomy of the persons affected by the
positive action proposed. The law does not impose a duty to eliminate risk. It accepts that
competent people have the right to engage in risky activities. Conversely, it permits third parties
witnessing risk to decide not to become rescuers or otherwise intervene. It is only when these third
parties have a special relationship to the person in danger or a material role in the creation or
management of the risk that the law may impinge on autonomy. Thus, the operator of a risky
sporting activity may be required to prevent a person who is unfit to perform a sport safely from
participating or, when a risk materializes, to attempt a rescue. Similarly, the publican may be
required to refuse to serve an inebriated patron who may drive, or a teacher be required to take
positive action to protect a child who lacks the right or power to make decisions for itself. The
autonomy of risk takers or putative rescuers is not absolutely protected, but, at common law, it is
always respected.
40. Finally, the theme of reasonable reliance unites examples in all three categories. A person who
creates or invites others into a dangerous situation, like the high-risk sports operator, may
reasonably expect that those taking up the invitation will rely on the operator to ensure that the risk
is a reasonable one or to take appropriate rescue action if the risk materializes. Similarly, a teacher
will understand that the child or the child’s parents rely on the teacher to avoid and minimize risk.
Finally, there is a reasonable expectation on the part of the public that a person providing public
services, often under licence, will take reasonable precautions to reduce the risk of the activity, not
merely to immediate clients, but to the general public.

41. Does the situation of the social host who serves alcohol to guests fall within the three categories
just discussed or represent an appropriate extension of them having regard to the factors of risk-
control and reasonable preservation of autonomy that animate them? I conclude that it does not.
42. The first category concerns defendants who have created or invited others to participate in
highly risky activities. Holding a house party where alcohol is served is not such an activity. Risks
may ensue, to be sure, from what guests choose to do or not do at the party. But hosting a party is a
far cry from inviting participation in a high-risk sport or taking people out on a boating party. A
party where alcohol is served is a common occurrence, not one associated with unusual risks
demanding special precautions. The second category of paternalistic relationships of supervision or
control is equally inapplicable. Party hosts do not enjoy a paternalistic relationship with their
guests, nor are their guests in a position of reduced autonomy that invites control. Finally, private
social hosts are not acting in a public capacity and, hence, do not incur duties of a public nature.
43. More broadly, do the themes that animate the cases imposing positive duties to act — risk
enhancement and control, autonomy and reasonable reliance — suggest that the social hosts in this
case owed a duty of care to third-party users of the highway, to take reasonable steps to prevent
what happened? Again, the answer is that they do not.
44. Holding a private party at which alcohol is served — the bare facts of this case — is insufficient
to implicate the host in the creation of a risk sufficient to give rise to a duty of care to third parties
who may be subsequently injured by the conduct of a guest. The host creates a place where people
can meet, visit and imbibe alcohol, whether served on the premises or supplied by the guest. All
this falls within accepted parameters of non-dangerous conduct. More is required to establish a
danger or risk that requires positive action. It might be argued that a host who continues to serve
alcohol to a visibly inebriated person knowing that he or she will be driving home has become
implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of
care to third parties, which would be subject to contrary policy considerations at the second stage of
the Anns test. This position has been taken in some states in the U.S.A.: N.J. Stat. Ann. §§ 2A: 15-
5.5 to 5.8 (West 2000). We need not decide that question here. Suffice it to say that hosting a party
where alcohol is served, without more, does not suggest the creation or exacerbation of risk of the
level required to impose a duty of care on the host to members of the public who may be affected by
a guest’s conduct.
45. Nor does the autonomy of the individual support the case for a duty to take action to protect
highway users in the case at bar. As discussed, the implication of a duty of care depends on the
relationships involved. The relationship between social host and guest at a house party is part of
this equation. A person who accepts an invitation to attend a private party does not park his
autonomy at the door. The guest remains responsible for his or her conduct. Short of active
implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a
guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in
almost all cases a personal choice and an inherently personal activity. Absent the special
considerations that may apply in the commercial context, when such a choice is made by an adult,
there is no reason why others should be made to bear its costs. The conduct of a hostess who
confiscated all guests’ car keys and froze them in ice as people arrived at her party, releasing them
only as she deemed appropriate, was cited to us as exemplary. This hostess was evidently prepared

to make considerable incursions on the autonomy of her guests. The law of tort, however, has not
yet gone so far.
46. This brings us to the factor of reasonable reliance. There is no evidence that anyone relied on
the hosts in this case to monitor guests’ intake of alcohol or prevent intoxicated guests from
driving. This represents an important distinction between the situation of a private host, as here,
and a public host. The public host provides alcohol to members of the public, under a strict
regulatory regime. It is reasonable to expect that the public provider will act to protect the public
interest. There is public reliance that he will comply with the rules that prohibit serving too much
alcohol to a patron and that if this should occur and the patron seeks to drive, that the public host
will take reasonable steps to prevent the person from driving. The same cannot be said of the
private social host, who neither undertakes nor is expected to monitor the conduct of guests on
behalf of the public.
47. I conclude that hosting a party at which alcohol is served does not, without more, establish the
degree of proximity required to give rise to a duty of care on the hosts to third-party highway users
who may be injured by an intoxicated guest. The injury here was not shown to be foreseeable on
the facts as found by the trial judge. Even if it had been, this is at best a case of nonfeasance. No
duty to monitor guests’ drinking or to prevent them from driving can be imposed having regard to
the relevant cases and legal principles. A social host at a party where alcohol is served is not under
a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s
conduct implicates him or her in the creation or exacerbation of the risk. On the facts of this case, I
agree with the Court of Appeal, at para. 75, per Weiler J.A.:
The person sought to be held liable must be implicated in the creation of the risk. ...
The social hosts had no statutory duty to monitor the consumption of alcohol or to
control the structure of the atmosphere in which alcohol was served. There is no
evidence that anyone relied on them to do so. ... I cannot accept the proposition that by
merely supplying the venue of a BYOB party, a host assumes legal responsibility to
third party users of the road for monitoring the alcohol consumed by guests. ... It would
not be just and fair in the circumstances to impose a duty of care.
48. Having concluded that a prima facie duty of care has not been established, it is unnecessary to
consider whether any duty would be negated by policy considerations at the second stage of the
Anns test.
4. Conclusion
49 . I would dismiss the appeal with costs.

Richardson v Sanayhie
2010 ONSC 3000 (Sup Ct)
[1] Inga and Joey are living together as common law spouses. They are invited to a house
party. Joey agrees to be the designated driver. At the party, Inga consumes “copious amounts of
alcohol” and becomes intoxicated. During the drive home, the couple begins to argue. Inga
becomes increasingly agitated and threatens to jump out of the moving vehicle. Joey keeps driving.
Inga proceeds to jump out of the moving vehicle and tragically suffers catastrophic injuries,
including a traumatic brain injury. Inga sues Joey and alleges that he breached numerous duties of
care, including duties stemming from his role as a designated driver.
[2] This is a motion by the defendant under rule 21.01(1)(a) to strike those paragraphs that
allege that Joey, as designated driver, was required to monitor and control Inga’s consumption of
alcohol at the party and generally supervise her behaviour. In failing to do so, he breached a duty of
care and was negligent.
[3] The defendant does not seek to strike the paragraphs that allege that Joey was negligent
in the operation of the motor vehicle. The paragraphs that allege negligence in not slowing down or
coming to a stop once the threat to jump out was made by the intoxicated passenger remain intact.
[4] The focus here is on that portion of the pleading that would impose on a designated
driver, in the absence of any special agreement, a general duty to supervise and control the alcohol
consumption of his passengers and generally ensure that every passenger gets home safely. The
defendant says that there is no such duty in law and for good reason. The imposition of these
additional duties to monitor and control the passenger’s alcohol consumption would discourage
people from ever agreeing to be a designated driver. This would not be in the public interest. The
defendant submits that the impugned paragraphs do not disclose a reasonable cause of action and
should be struck.
[5] I agree with the defendant. In my view, there is no chance that a sensible trier of fact
would impose such duties on a designated driver. The impugned paragraphs are certain to fail. The
motion to strike is granted.
Analysis
[6] As already noted, the claims being challenged herein allege certain failures or
omissions on Joey’s part in his capacity as designated driver while the couple was at the party –
mainly failures of supervision and control.[1]
[7] As the Supreme Court noted in Childs v Desormeaux, “the common law is a jealous
guardian of personal autonomy.”[2] The mere fact that a person faces danger or has become a
danger to others does not in itself impose any kind of duty on those in a position to become
involved.[3] Where, as here, the conduct alleged against the defendant is a failure to act – that is,
nonfeasance – a positive duty of care will only be imposed if three requirements are satisfied:

reasonable foreseeability, sufficient proximity and the absence of any over-riding policy
consideration which negates the prima facie duty of care established by foreseeability and
proximity.[4]
[8] In my view, the impugned portion of the pleadings must be struck on two bases:
proximity and public policy.
[9] Proximity. The fact that Joey and Inga were living together does not mean that Joey, as
the designated driver, had a duty to monitor and curtail Inga’s consumption of alcohol. There is no
evidence of any specific discussion or agreement wherein Joey promised to do so. Absent such
agreement, Joey was under no obligation to monitor and limit Inga’s alcohol consumption.
[10] The Supreme Court made clear in the Childs decision that a duty to take positive action
can only be imposed where there is a “special linkage or proximity” in the relationship between the
parties.[5] Three examples are provided:
• Where the defendant invites others to subject themselves to a risk that he has created and
controls – e.g. a boat captain should reasonably try to rescue a passenger who has fallen overboard;
a ski resort that operates a down-hill tube racing event has a duty to exclude a participant they know
is intoxicated.
• Where there is a paternalistic relationship of supervision and control – e.g. such as parent-
child or teacher-student. The duty to take positive action in these cases rests on the special
vulnerability of the plaintiff and the formal position of power of the defendant.
• Where the defendant offers a service to the public at large or engages in a commercial
enterprise – e.g. the hotel or bar that knowingly serves liquor to intoxicated patrons. A duty to take
some positive action to prevent drunk-driving may arise.
[11] Running through all of these situations is the defendant’s creation or control of the risk
to which others have been invited, a continuing concern for individual autonomy and a strong theme
of reasonable reliance.[6]
[12] None of this applies herein. Joey did not invite Inga to subject herself to a risk that he
created or controlled. There is no evidence that the relationship between Joey and Inga was one in
which Joey exercised power and control over a vulnerable and dependent spouse or that Inga
reasonably relied on Joey to supervise and control her alcohol intake whenever they went out to a
party. In sum, there is insufficient proximity between the parties on the facts as pleaded.
[13] Public policy. Even if the necessary degree of proximity could be established, the prima
facie duty of care would, in my view, be negatived by over-riding concerns of public policy. If
designated drivers are required not only to remain sober themselves but also to be responsible for
their passengers’ level of sobriety as proposed herein, no person would ever agree to be a
designated driver and perform this important function. This is a development that clearly would not
be in the public interest.

[14] Thus, for reasons of both proximity and public policy, the allegations imposing
supervisory and control duties on Joey simply because he was the designated driver do not disclose
a reasonable cause of action.
Disposition
[15] Order to go striking the words the last fourteen words of paragraph 4 (“and in doing so,
he had a duty to ensure she arrived home safely”) and all of paragraphs 9a, b, c, e, h, i and n. (In my
view 9j relates more to the ‘operation of the motor vehicle’ allegations that are not being challenged
and will not be struck.)
[16] On consent, order also to go striking paragraph 7 and that portion of paragraph 12 that
refers to the Occupier’s Liability Act. Counsel agree that occupier’s liability is not a viable basis for
the plaintiff’s claim.
[17] Counsel have also agreed that the appropriate costs award is $3000. Costs are therefore
fixed at $3000 all-inclusive, payable by the plaintiff to the defendant within 30 days.
[18] I am obliged to counsel for their assistance.
_________________________
Belobaba J.
Date: May 26, 2010
[1] The allegations include: Joey’s failure as the designated driver “to ensure that [Inga] arrived
home safely (para. 4); his failure to monitor and curtail Inga’s consumption of alcohol (para. 9a); to
supervise Inga to ensure her safety once she became intoxicated (para. 9b); knowing Inga was
intoxicated, Joey failed to take any effective measures to prevent harm to her (para. 9c); he failed to
take appropriate or effective measures to ensure she arrived home safely (para. 9e); he failed to put
Inga in the backseat of the vehicle when he knew that this would have prevented harm from
occurring to her and thus failed to ensure Inga’s safety on the way home (para. 9h); he failed to
ensure that Inga got home safely even though he agreed to ensure he did so prior to Inga becoming
intoxicated (para. 9i); and he failed to properly and adequately supervise Inga while she was
intoxicated (para. 9n).
[2] Childs v Desormeaux, [2006] S.C.C. 18 at para. 31.
[3] Ibid., at para. 31.
[6] Ibid., at para. 38-40.

Parental Responsibility Act, 2000
SO 2000, c 4
Definitions
1. In this Act, except as otherwise provided in section 10,
"child" means a person who is under the age of 18 years; ("enfant")
"parent" means,
(a) a biological parent of a child, unless section 158 of the Child and Family Services
Act applies to the child,
(b) an adoptive parent of a child,
(c) an individual declared to be a parent of a child under the Children's Law Reform Act,
(d) an individual who has lawful custody of a child, and
(e) an individual who has a lawful right of access to a child. ("père ou mère")
Parents' liability
2. (1) Where a child takes, damages or destroys property, an owner or a person entitled to
possession of the property may bring an action in the Small Claims Court against a parent of the
child to recover damages, not in excess of the monetary jurisdiction of the Small Claims Court,
(a) for loss of or damage to the property suffered as a result of the activity of the child;
and
(b) for economic loss suffered as a consequence of that loss of or damage to property.
Same
(2) The parent is liable for the damages unless the parent satisfies the court that,
(a) he or she was exercising reasonable supervision over the child at the time the child
engaged in the activity that caused the loss or damage and made reasonable efforts to
prevent or discourage the child from engaging in the kind of activity that resulted in
the loss or damage; or
(b) the activity that caused the loss or damage was not intentional.
Factors
(3) For the purposes of clause (2) (a), in determining whether a parent exercised reasonable
supervision over a child or made reasonable efforts to prevent or
discourage the child from engaging in the kind of activity that resulted in the loss or damage, the
court may consider,

(a) the age of the child;
(b) the prior conduct of the child;
(c) the potential danger of the activity;
(d) the physical or mental capacity of the child;
(e) any psychological or other medical disorders of the child;
(f) whether the child was under the direct supervision of the parent at the time when the
child was engaged in the activity;
(g) if the child was not under the direct supervision of the parent when the child engaged
in the activity, whether the parent acted unreasonably in failing to make reasonable
arrangements for the supervision of the child;
(h) whether the parent has sought to improve his or her parenting skills by attending
parenting courses or otherwise;
(i) whether the parent has sought professional assistance for the child designed to
discourage activity of the kind that resulted in the loss or
damage; and
(j) any other matter that the court considers relevant.
….
Restitution
5. In determining the amount of damages in an action brought under this Act, the court may take
into account any amount ordered by a court as restitution or paid
voluntarily as restitution.
Joint and several liability
6. Where more than one parent is liable in an action brought under this Act for a child's activity,
their liability is joint and several.
….
Other remedies
9. Nothing in this Act shall be interpreted to limit remedies otherwise available under existing law
or to preclude the development of remedies under the law.
Parents' onus of proof in actions not under this Act
10. (1) This section applies to any action brought otherwise than under this Act.

Same
(2) In an action against a parent for damage to property or for personal injury or death caused by
the fault or neglect of a child who is a minor, the onus of establishing that the parent exercised
reasonable supervision and control over the child rests with the parent.
Same
(3) In subsection (2), "child" and "parent" have the same meaning as in the Family Law Act.

Ryan v Victoria (City)
[1999] 1 SCR 201
[The appellant was injured when he was thrown from his motorcycle while attempting to cross
railway tracks running down the centre of a street in downtown Victoria. The front tire of his
motorcycle became trapped in a "flangeway" gap running alongside the inner edge of the street-
grade tracks. The motorcyclist sued the City and the railways which owned and operated the tracks.
The trial judge held the railways and the City jointly and severally liable in negligence, the former
for maintaining dangerously wide flangeways and the latter for failing to warn of the hazard. The
British Columbia Court of Appeal held all of the respondents liable only for failure to warn. At
issue in the Supreme Court of Canada was whether the trial judge’s finding of negligence against
the railways for maintaining dangerously wide flangeways should be restored. The Supreme Court
determined that it should, and in doing so addressed the appropriate standard of care analysis that
ought to be applied:]
MAJOR J.:—….
28 Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid

liability, a person must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances. The measure of what is reasonable
depends on the facts of each case, including the likelihood of a known or foreseeable harm, the
gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In
addition, one may look to external indicators of reasonable conduct, such as custom, industry
practice, and statutory or regulatory standards.
29 Legislative standards are relevant to the common law standard of care, but the two are
not necessarily co-extensive. The fact that a statute prescribes or prohibits certain activities may
constitute evidence of reasonable conduct in a given situation, but it does not extinguish the
underlying obligation of reasonableness. See R. in right of Canada v. Saskatchewan Wheat Pool,
[1983] 1 S.C.R. 205. Thus, a statutory breach does not automatically give rise to civil liability; it is
merely some evidence of negligence. See, e.g., Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 36,
and Saskatchewan Wheat Pool, at p. 225. By the same token, mere compliance with a statute does
not, in and of itself, preclude a finding of civil liability…. Statutory standards can, however, be
highly relevant to the assessment of reasonable conduct in a particular case, and in fact may render
reasonable an act or omission which would otherwise appear to be negligent. This allows courts to
consider the legislative framework in which people and companies must operate, while at the same
time recognizing that one cannot avoid the underlying obligation of reasonable care simply by
discharging statutory duties.
30 The foregoing view, though generally accepted, has long been resisted in railway
cases. For more than 90 years, railway companies have benefited from a “special rule” at common
law which placed them in a privileged position within the law of negligence. As long as a railway

complied with the requirements imposed upon it by applicable statutes, regulations and
administrative orders, it was under no further obligation -- absent extraordinary circumstances -- to
act in an objectively reasonable manner. This rule has usually been framed in terms of limiting the
“duty of care” owed by railways to the public. It is more easily understood as limiting the standard
of care which railways must meet under an existing legal duty. Either way, the effect of the rule
was the same: it excused railway companies in most cases from the ordinary obligation of prudence
which governs other members of society.
[Major J. then retraces the history of the rule.]
33 ….The special status enjoyed by railway companies under the law of negligence can
no longer be justified in principle and the time has come for that rule to be set aside. Although a
doctrine of such long standing should not lightly be discarded, there is little to be gained from
maintaining for its own sake a line of jurisprudence which has lost its relevance.
34 The Railways contend that the … rule should be preserved in deference to the
expertise of the Board (now the Canadian Transportation Agency) on matters of railway safety.
That argument is unpersuasive. The orders of an administrative board may be relevant to the
determination of reasonable behaviour in specific circumstances. However, as noted, such orders
do not oust the underlying standard of reasonableness imposed by common law. A railway, like
any other company or individual, is subject to generally applicable principles of negligence, and
should not enjoy special protection when its actions or omissions cause harm to other members of
society….
35 It is useful to note that even when applying the … rule, courts have implicitly
recognized that statutory compliance cannot replace the common law standard of care, and can be
accepted as a substitute for that standard only in certain circumstances. Thus, in “ordinary” cases,
compliance with the statute has been held to exhaust the requirement of reasonable conduct; in
“exceptional” cases, however, the statutory standard has been deemed “insufficient” and the
common law has been retrieved to fill the gap. As Robertson C.J. stated for the Ontario Court of
Appeal in Anderson v. Canadian National Railway Co., [1944] O.R. 169, at p. 177:
. . . under ordinary circumstances, the railway is permitted to carry on its usual

operations in the normal way, at a highway level crossing, without other precautions
and warnings than are prescribed by the Railway Act or by the Board, but if the
operations are carried on in such a way, or are of such a character, that the public
using the crossing is exposed to exceptional danger . . . or if there are exceptional
circumstances . . . that render ineffective or insufficient the precautions and warnings
generally prescribed, then, in such cases, it may be left to a jury to say whether or not
the railway has been negligent in failing to adopt other measures for the protection of
those who may use the crossing.
36 The problem with the … rule was that instead of focusing the analysis on whether
statutory compliance by the railway was reasonable in the circumstances, it assumed that step as a
matter of law and forced the plaintiff to rebut the presumption. See, e.g., Richardson v. Surrey

(Dist.) (1990), 43 B.C.L.R. (2d) 210 (B.C.C.A.), at p. 214. With the abolishment of the special rule,
the correct principles can now be stated more clearly. Compliance with a statutory standard of care
does not abrogate or supersede the obligation to comply with the common law standard of care.
The requirements are concurrent, and each carries its own penalty for breach. However, in
appropriate circumstances, compliance with statutory standards may entirely satisfy the common
law standard of care and thus absolve a defendant of liability in negligence….
39 The weight to be accorded to statutory compliance in the overall assessment of

reasonableness depends on the nature of the statute and the circumstances of the case. It should be
determined whether the legislative standards are necessarily applicable to the facts of the case.
Statutory compliance will have more relevance in “ordinary” cases -- i.e., cases clearly within the
intended scope of the statute -- than in cases involving special or unusual circumstances. See
Paskivski, supra, and Anderson, supra. It should also be determined whether the legislative
standards are specific or general, and whether they allow for discretion in the manner of
performance. It is a well-established principle that an action will lie against any party, public or
private, “for doing that which the legislature has authorized, if it be done negligently”. See Geddis
v. Proprietors of the Bann Reservoir (1878), 3 App. Cas. 430 (H.L.), at pp. 455-56; see also
Kamloops, supra, at p. 11, and Just, supra, at p. 1245. It follows that a party acting under statutory
authority must still take such precautions as are reasonable within the range of that authority to
minimize the risks which may result from its actions. See Tock, supra (applying similar principles
in the nuisance context).
40 Where a statute authorizes certain activities and strictly defines the manner of
performance and the precautions to be taken, it is more likely to be found that compliance with the
statute constitutes reasonable care and that no additional measures are required. By contrast, where
a statute is general or permits discretion as to the manner of performance, or where unusual
circumstances exist which are not clearly within the scope of the statute, mere compliance is
unlikely to exhaust the standard of care. This approach strikes an appropriate balance among
several important policies, including deference to legislative determinations on matters of railway
safety, security for railways which comply with prescribed standards, and protection for those who
may be injured as a result of unreasonable choices made by railways in the exercise of official
authority….
************

Clements v Clements
2012 SCC 32
The judgment of McLachlin C.J. and Deschamps, Fish, Abella, Cromwell, Moldaver and
Karakatsanis JJ. was delivered by
THE CHIEF JUSTICE —
Introduction
[1] The parties to this appeal, Mr. and Mrs. Clements, were motor bike enthusiasts. August
7th, 2004, found them en route from their home in Prince George, British Columbia, to visit their
daughter in Kananaskis, Alberta. The weather was wet. Mr. Clements was driving the bike and Mrs.
Clements was riding behind on the passenger seat. The bike was about 100 pounds overloaded.
Unbeknownst to Mr. Clements, a nail had punctured the bike’s rear tire. Though Mr. Clements was
travelling in a 100 km/h zone, he accelerated to at least 120 km/h in order to pass a car. As he
crossed the centre line to commence the passing manoeuvre, the nail fell out, the rear tire deflated,
and the bike began to wobble. Mr. Clements was unable to bring the bike under control and it
crashed, throwing Mrs. Clements off. Mrs. Clements suffered a severe traumatic brain injury. She
now sues Mr. Clements, claiming that her injury was caused by his negligence in the operation of
the bike.
[2] Mr. Clements’ negligence in driving an overloaded bike too fast is not disputed. The
only issue is whether his negligence caused Mrs. Clements’ injury. Mr. Clements called an expert
witness, Mr. MacInnis, who testified that the probable cause of the accident was the tire puncture
and deflation, and that the accident would have happened even without the negligent acts of Mr.
Clements.
[3] The trial judge rejected this conclusion, and found that Mr. Clements’ negligence in fact
contributed to Mrs. Clements’ injury. However, he held that the plaintiff “through no fault of her
own is unable to prove that ‘but for’ the defendant’s breaches, she would not have been injured”,
due to the limitations of the scientific reconstruction evidence.... The trial judge went on to hold that
in view of this impossibility of precise proof of the amount each factor contributed to the injury,
“but for” causation should be dispensed with and a “material contribution” test applied. He found
Mr. Clements liable on this basis.
[4] The British Columbia Court of Appeal, per Frankel J.A., set aside the judgment against
Mr. Clements on the basis that “but for” causation had not been proved and the material
contribution test did not apply....
[5] The legal issue is whether the usual “but for” test for causation in a negligence action
applies, as the Court of Appeal held, or whether a material contribution approach suffices, as the
trial judge held. For the reasons that follow, I conclude that a material contribution test was not

applicable in this case. I would return the matter to the trial judge to be dealt with on the correct
basis of “but for” causation....
A. Causation in the Law of Negligence: The Basic Rule of “But For” Causation
[6] On its own, proof by an injured plaintiff that a defendant was negligent does not make
that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence
(breach of the standard of care) caused the injury. That link is causation.
[7] Recovery in negligence presupposes a relationship between the plaintiff and defendant
based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been
injured by that fault. If the defendant breaches this duty and thereby causes injury to the plaintiff,
the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the
plaintiff for the injury suffered. This basis for recovery, sometimes referred to as “corrective
justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of
doer and sufferer of the same harm....
[8] The test for showing causation is the “but for” test. The plaintiff must show on a
balance of probabilities that “but for” the defendant’s negligent act, the injury would not have
occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was
necessary to bring about the injury ― in other words that the injury would not have occurred
without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this
on a balance of probabilities, having regard to all the evidence, her action against the defendant
fails.
[9] The “but for” causation test must be applied in a robust common sense fashion. There is
no need for scientific evidence of the precise contribution the defendant’s negligence made to the
injury. See Wilsher v Essex Area Health Authority, [1988] AC 1074 1090, per Lord Bridge; Snell v
Farrell, [1990] 2 SCR 311.
[10] A common sense inference of “but for” causation from proof of negligence usually
flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit
the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused
the loss. See Snell and Athey v Leonati, [1996] 3 SCR 458….
[11] Where “but for” causation is established by inference only, it is open to the defendant to
argue or call evidence that the accident would have happened without the defendant’s negligence,
i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable.
As Sopinka J. put it in Snell, at p. 330:
The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to
the contrary adduced by the defendant, an inference of causation may be drawn
although positive or scientific proof of causation has not been adduced. If some
evidence to the contrary is adduced by the defendant, the trial judge is entitled to take
account of Lord Mansfield’s famous precept [that “all evidence is to be weighed
according to the proof which it was in the power of one side to have produced, and in

the power of the other to have contradicted” (Blatch v Archer (1774), 1 Cowp 63, 98 ER
969 at 970)]. This is, I believe, what Lord Bridge had in mind in Wilsher when he
referred to a “robust and pragmatic approach to the ... facts” (p. 569). [Emphasis added.]
[12] In some cases, an injury — the loss for which the plaintiff claims compensation — may
flow from a number of different negligent acts committed by different actors, each of which is a
necessary or “but for” cause of the injury. In such cases, the defendants are said to be jointly and
severally liable. The judge or jury then apportions liability according to the degree of fault of each
defendant pursuant to contributory negligence legislation.
[13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on
a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is
a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to
recover on the basis of “material contribution to risk of injury”, without showing factual “but for”
causation. As will be discussed in more detail below, this can occur in cases where it is impossible
to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it
is established that one or more of them did in fact cause it. In these cases, the goals of tort law and
the underlying theory of corrective justice require that the defendant not be permitted to escape
liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable
on the basis that he materially contributed to the risk of the injury.
[14] “But for” causation and liability on the basis of material contribution to risk are two
different beasts. “But for” causation is a factual inquiry into what likely happened. The material
contribution to risk test removes the requirement of “but for” causation and substitutes proof of
material contribution to risk. As set out by Smith J.A. in MacDonald v Goertz, 2009 BCCA 358,
275 BCAC 68 at para 17,
. . . “material contribution” does not signify a test of causation at all; rather it is a

policy-driven rule of law designed to permit plaintiffs to recover in such cases despite
their failure to prove causation. In such cases, plaintiffs are permitted to “jump the
evidentiary gap”: see “Lords a ‘leaping evidentiary gaps”, (2002) Torts Law Journal
276, and “Cause-in-Fact and the Scope of Liability for Consequences”, (2003) 119
L.Q.R. 388, both by Professor Jane Stapleton. That is because to deny liability “would
offend basic notions of fairness and justice”: Hanke v. Resurfice Corp., para. 25.
[15] While the cases and scholars have sometimes spoken of “material contribution to the
injury” instead of “material contribution to risk”, the latter is the more accurate formulation. As will
become clearer when we discuss the cases, “material contribution” as a substitute for the usual
requirement of “but for” causation only applies where it is impossible to say that a particular
defendant’s negligent act in fact caused the injury. It imposes liability not because the evidence
establishes that the defendant’s act caused the injury, but because the act contributed to the risk that
injury would occur. Thus this Court in Snell and Resurfice Corp v Hanke, 2007 SCC 7, [2007] 1
SCR 333, raised the possibility of a material contribution to risk approach. The English law takes
the same approach, as discussed below.

[16] Elimination of proof of causation as an element of negligence is a “radical step that
goes against the fundamental principle stated by Diplock L.J. in Browning v War Office, [1962] 3
All ER 1089 (CA) at 1094-95: ‘…[a] defendant in an action in negligence is not a wrongdoer at
large; he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff’”:
Mooney v British Columbia, 2004 BCCA 402, 202 BCAC 74 at para 157, per Smith J.A.,
concurring in the result. For that reason, recourse to a material contribution to risk approach is
necessarily rare, and justified only where it is required by fairness and conforms to the principles
that ground recovery in tort.
B. The Material Contribution to Risk Approach
1. The Canadian Cases
[17] The possibility of material contribution as an exceptional substitute for “but for”
causation has arisen in a variety of contexts involving multiple tortfeasors.
[18] One of the earliest cases on the issue is Cook v Lewis, [1951] SCR 830. Three men were
out hunting. Two of them fired shots, virtually simultaneously. One of the shots struck a fourth
hunter, Mr. Lewis, who was injured and sued both defendants in negligence. On the evidence, it
could not be established which defendant’s gun had fired the shot that injured Mr. Lewis. Clearly,
one of the men had caused Mr. Lewis’ injury, and one had not. But which one? The evidence shed
no light on this. The defendants contended that the plaintiff’s action must be dismissed because he
had not proved “but for” causation against either defendant, relying on the classic “point the finger
at someone else” defence. Both defendants were found jointly and severally liable. The majority
reasons in this Court spoke of reversing the onus in these circumstances, rather than material
contribution to risk.
[19] The Court in Cook relaxed the usual “but for” test for causation on the basis that
fairness required this. It was “impossible” for the plaintiff to prove on a balance of probabilities that
either man had injured him on the “but for” test; both defendants could say it was just as likely the
other had caused Mr. Lewis’ injury, precluding the plaintiff from discharging his burden against
either. Only one of the defendants had in fact injured the plaintiff. But both defendants had
breached their duty of care to Mr. Lewis and subjected him to unreasonable risk of the injury that in
fact materialized. The plaintiff was the victim of negligent conduct “but for” which he would not
have been injured. To deny him recovery, while allowing the negligent defendants to escape
liability by pointing the finger at each other, would not have met the goals of negligence law of
compensation, fairness and deterrence, in a manner consistent with corrective justice.
[20] Cook was considered in Snell. The plaintiff in Snell had undergone surgery to remove a
cataract. Bleeding occurred. When the bleeding cleared up nine months later, it was found that the
plaintiff’s optic nerve had atrophied, causing loss of sight in her right eye. Neither of the expert
witnesses was able to state what caused the atrophy or when it had occurred. The trial judge, upheld
by the Court of Appeal, did not apply the usual “but for” test, but applied a reverse onus test. This
Court affirmed recovery, but on the basis of a robust and common sense application of the “but for”
test. However, Sopinka J. suggested that had it been necessary and appropriate, a material
contribution to risk approach might have been applicable:

I have examined the alternatives arising out of [McGhee v National Coal Board]. They
were that the plaintiff simply prove that the defendant created a risk that the injury
which occurred would occur. Or, what amounts to the same thing, that the defendant has
the burden of disproving causation. If I were convinced that defendants who have a
substantial connection to the injury were escaping liability because plaintiffs cannot
prove causation under currently applied principles, I would not hesitate to adopt one of
these alternatives. In my opinion, however, properly applied, the principles relating to
causation are adequate to the task. [Emphasis added; pp. 326-27.]
[21] Sopinka J. went on to underline the importance of establishing a substantial connection

between the injury and the defendant’s negligence. The usual requirement of proof of “but for”
causation should not be relaxed where the result would be to permit plaintiffs to recover in the
absence of evidence connecting the defendant’s fault to the plaintiff’s injury. Thus Sopinka J. stated
that if the injury likely was brought about by “neutral” factors, that is, it would have occurred absent
any negligence, the plaintiff cannot succeed. To allow recovery where the injury was the result of
neutral factors would neither further the goals of compensation, fairness and deterrence, nor
comport with the theory of corrective justice that underlies the law of negligence.
[22] These ideas were again taken up in Athey. The plaintiff, who suffered from pre-existing
back problems, suffered a herniated disc after two motor vehicle accidents. He sued the drivers of
the motor vehicles in negligence for his injury. The trial judge held that although the accidents were
“not the sole cause” of the disc herniation, they played “some causative role” (para 8). She
accordingly found the defendants liable for 25 percent of the plaintiff’s loss. In the Court of Appeal,
the plaintiff sought to uphold the result on the basis of material contribution, but that court declined
to consider the issue as it had not been raised at trial.
[23] This Court, per Major J., discussed the limitations of the “but for” test and the propriety
of exceptionally using a material contribution test. Major J. emphasized that a robust common sense
approach to the “but for” test permits an inference of “but for” causation from evidence that the
defendant’s conduct was a significant factor in the injury, and concluded that “[t]he plaintiff must
prove causation by meeting the ‘but for’ or material contribution test” (para. 41). Major J.
concluded that the 25 percent contribution found by the trial judge was a “material contribution”
sufficient to meet the “but for” test. The term “material contribution”, read in context, does not
detract from the fact that the Court in the end applied a robust, common sense application of the
“but for” test, in accordance with Snell.
[24] The problem of proof of causation where there are two or more possible tortfeasors
arose in a slightly different manner in Walker Estate v York Finch General Hospital, 2001 SCC 23,
[2001] 1 SCR 647. Ms. Walker contracted HIV from tainted blood. Her estate sued the supplier of
the blood for negligence in failing to screen out donors with a high risk of HIV by warning them not
to give blood. In defence, the suppliers argued that “but for” causation was not established, because
even if they had taken the required steps to screen, persons with HIV who did not know of their
condition or who did not wish to disclose it might have donated blood in any event. The Court
rejected this defence and found the supplier liable.

[25] In Walker Estate, as in Athey, Major J. once again alluded to the inadequacy of the “but
for” test in some situations, in particular in cases where multiple independent causes may bring
about a single harm (para 87). He found that causation in the usual sense could be established on the
trial judge’s findings (paras 89-98). In obiter, however, Major J. adopted the reasoning of Sopinka
J. in Snell to the effect that, in an appropriate case, where the ordinary principles of causation are
inadequate to the task and result in unfairness and inconsistency with the underlying principles of
negligence, it might be possible to dispense with factual proof of “but for” causation and apply a
less onerous “material contribution” test (para 99).
[26] This brings us to Resurfice. The plaintiff, whose job was to maintain ice surfaces,
mistakenly poured water into the gas tank of the machine used for that purpose. Gasoline vapour
was sparked, causing an explosion and fire, and the plaintiff was badly burned. He sued the
manufacturer and distributor of the machine, alleging negligence in not arranging or marking the
machine in a way that would have avoided confusion between the water tank and the gas tank. The
trial judge found that the plaintiff had not proved that the accident had been caused by the
manufacturer or the distributor and dismissed the action. The Court of Appeal ordered a new trial on
the basis that the trial judge had erred in his treatment of foreseeability and causation.
[27] This Court endorsed the trial judge’s conclusion that the plaintiff had failed to establish
causation on the “but for” test, and held that a material contribution approach was inapplicable. The
decision affirmed that in “special circumstances”, the law has recognized that the “but for” test for
causation should be replaced by a material contribution approach (para 24). This may occur where it
is “impossible” for the plaintiff to prove causation on the “but for” test, and where it is clear that the
defendant breached his duty of care in a way that exposed the plaintiff to an unreasonable risk of
injury. The basis for the exception in these circumstances is that requiring “but for” causation
“would offend basic notions of fairness and justice” (para 25).
[28] To recap, the Canadian Supreme Court jurisprudence on a material contribution

approach to date may be summarized as follows. First, while accepting that it might be appropriate
in “special circumstances”, the Court has never in fact applied a material contribution to risk test.
Cook was analyzed on a reverse onus basis. Snell, Athey, Walker Estate and Resurfice were all
resolved on a robust and common sense application of the “but for” test of causation. Nevertheless,
the Court has acknowledged the difficulties of proof that multi-tortfeasor cases may pose ―
difficulties which in some cases may justify relaxing the requirement of “but for” causation and
finding liability on a material contribution to risk approach.
2. The United Kingdom Cases
[29] The courts of the United Kingdom have adopted a material contribution to risk
approach to the problem of toxic agent cases involving negligence by more than one employer:
Fairchild v Glenhaven Funeral Services Ltd., [2002] UKHL 22, [2002] 3 All ER 305; and Barker v
Corus UK Ltd., [2006] UKHL 20, [2006] 2 AC 572. Recently, the United Kingdom Supreme Court
decided that a material contribution to risk approach can apply as well when a single negligent
employer has exposed a plaintiff to asbestos: see Sienkiewicz v Greif (UK) Ltd., [2011] UKSC 10,
[2011] 2 All ER 857. I will return to this case later in these reasons.

[30] The plaintiffs in Fairchild and Barker had developed diseases related to toxic
workplace agents, but were unable to prove which of several possible sources of the agents had
caused their disease. In both cases, the plaintiffs had been exposed to asbestos at different times
when working for different employers. A single fibre of asbestos could have caused the disease. As
all the employers had exposed the employee to the same risk, it was impossible to say which
employer’s negligence in fact led to the disease. In each case, the defendants pointed the finger at
the negligence of others. And in each case, the court rejected this defence and found liability on the
basis of material contribution.
[31] The U.K. toxic agent cases debated whether the defendants in these circumstances were
held liable because they materially contributed to the injury, or to the risk of the injury.
Lord Hoffmann, in Barker, stated that the purpose of the Fairchild exception was “to provide a
cause of action against a defendant who has materially increased the risk that the claimant will
suffer damage and may have caused that damage, but cannot be proved to have done so because it is
impossible to show, on a balance of probability, that some other exposure to the same risk may not
have caused it instead” (para 17).
[32] Viewed generally, the toxic agent cases up to Sienkiewicz hold that resort may be had to
the concept of material contribution to the risk of injury where it is plain that any or all of a number
of tortfeasors could have caused the plaintiff’s injury, but it is impossible to say that any particular
one in fact did so. In this situation, fairness and policy support relaxation of the “but for” test. In
each case, the plaintiff would not have contracted the disease, “but for” the negligence of the
defendants as a group. As I will discuss further below, to allow the defendants to each escape
liability by pointing the finger at one another would have been at odds with the fairness, deterrence,
and corrective justice objectives of the law of negligence.
3. When Is a Material Contribution to Risk Approach Available?
[33] We have seen that the jurisprudence establishes that while tort liability must generally
be founded on proof that “but for” the defendant’s negligence the injury would not have occurred,
exceptionally proof of factual causation can be replaced by proof of a material contribution to the
risk that gave rise to the injury.
[34] In Resurfice, this Court summarized the cases as holding that a material contribution
approach may be appropriate where it is “impossible” for the plaintiff to prove causation on the “but
for” test and where it is clear that the defendant breached its duty of care (acted negligently) in a
way that exposed the plaintiff to an unreasonable risk of injury. As a summary of the jurisprudence,
this is accurate. However, as a test it is incomplete. A clear picture of when “but for” causation can
be replaced by material contribution to risk requires further exploration of what is meant by
“impossible to prove” (Resurfice at para 28) and what substratum of negligence must be shown. I
will discuss each of these related concepts in turn.

(a) “Impossibility”
[35] The idea running through the jurisprudence that to apply the material contribution
approach it must be “impossible” for the plaintiff to prove that the defendant’s negligence caused
the plaintiff’s injury using the “but for” test has produced uncertainty in this case and elsewhere.
[36] Some have suggested that “but for” proof must be logically or conceptually impossible
before material contribution to risk is available, arguing that Cook and the toxic agent cases show
impossibility in this sense. But it is difficult to know what this means. As a matter of pure logic, it is
conceivable that ballistics tests could have revealed which shotgun fired the shot that injured
Mr. Lewis. It is also conceivable that with further understanding, medical science may someday be
able to say which employer supplied the particle of asbestos that caused the plaintiffs in Barker to
develop mesothelioma. Clearly the impossibility in those examples was related to difficulties with
factual proof, not to logical problems inherent in the peculiarities of the case.
[37] However, the option of finding that a material contribution to risk approach is available
whenever proof of “but for” causation cannot be made on the facts is equally problematic. First,
how does one distinguish between a case of true impossibility of factual proof and a situation where
the plaintiff simply fails to meet her burden of establishing “but for” causation on the evidence?
Unless one can make a clear distinction, one effectively undermines the requirement that the
plaintiff bears the burden of showing that, “but for” the defendant’s negligence, she would not have
been injured. In any difficult case, the plaintiff would be able to claim impossibility of proof of
causation. Such a result would fundamentally change the law of negligence and sever it from its
anchor in corrective justice that makes the defendant liable for the consequences, but only the
consequences, of his negligent act.
[38] “Scientific impossibility”, relied on by the trial judge in this case, is merely a variant of
factual impossibility and attracts the same objections. In many cases of causal uncertainty, it is
conceivable that with better scientific evidence, causation could be clarified. Scientific uncertainty
was referred to in Resurfice in the course of explaining the difficulties that have arisen in the cases.
However, this should not be read as ousting the “but for” test for causation in negligence actions.
The law of negligence has never required scientific proof of causation; to repeat yet again, common
sense inferences from the facts may suffice. If scientific evidence of causation is not required, as
Snell makes plain, it is difficult to see how its absence can be raised as a basis for ousting the usual
“but for” test.
[39] What then are the cases referring to when they say that it must be “impossible” to prove
“but for” causation as a precondition to a material contribution to risk approach? The answer
emerges from the facts of the cases that have adopted such an approach. Typically, there are a
number of tortfeasors. All are at fault, and one or more has in fact caused the plaintiff’s injury. The
plaintiff would not have been injured “but for” their negligence, viewed globally. However, because
each can point the finger at the other, it is impossible for the plaintiff to show on a balance of
probabilities that any one of them in fact caused her injury. This is the impossibility of which Cook
and the multiple employer mesothelioma cases speak.

(b) Substratum of Negligence Involving Multiple Possible Tortfeasors
[40] The cases that have dispensed with the usual requirement of “but for” causation in
favour of a less onerous material contribution to risk approach are generally cases where, “but for”
the negligent act of one or more of the defendants, the plaintiff would not have been injured. This
excludes recovery where the injury “may very well be due to factors unconnected to the defendant
and not the fault of anyone”: Snell, per Sopinka J., at 327. The plaintiff effectively has established
that the “but for” test, viewed globally, has been met. It is only when it is applied separately to each
defendant that the “but for” test breaks down because it cannot be shown which of several negligent
defendants actually launched the event that led to the injury. The plaintiff thus has shown
negligence and a relationship of duty owed by each defendant, but faces failure on the “but for” test
because it is “impossible”, in the sense just discussed, to show which act or acts were injurious. In
such cases, each defendant who has contributed to the risk of the injury that occurred can be faulted.
[41] In these circumstances, permitting the plaintiff to succeed on a material contribution to

risk basis meets the underlying goals of the law of negligence. Compensation for injury is achieved.
Fairness is satisfied; the plaintiff has suffered a loss due to negligence, so it is fair that she turns to
tort law for compensation. Further, each defendant failed to act with the care necessary to avoid
potentially causing the plaintiff’s loss, and each may well have in fact caused the plaintiff’s loss.
Deterrence is also furthered; potential tortfeasors will know that they cannot escape liability by
pointing the finger at others. And these goals are furthered in a manner consistent with corrective
justice; the deficit in the relationship between the plaintiff and the defendants viewed as a group that
would exist if the plaintiff were denied recovery is corrected. The plaintiff has shown that she is in a
correlative relationship of doer and sufferer of the same harm with the group of defendants as a
whole, if not necessarily with each individual defendant.
[42] The only case to apply a material contribution to risk approach to a single tortfeasor is
Sienkiewicz. A plaintiff suffering from mesothelioma had only been exposed to asbestos from a
single negligent source and on the trial judge’s findings, “but for” causation could not be inferred.
The United Kingdom Supreme Court took the view that it was bound by precedent to apply a
material contribution to risk approach in all mesothelioma cases. Several members of the court in
Sienkiewicz noted the difficulty with such a result. Lady Hale observed (at para 167) that she found
it hard to believe that a defendant “whose wrongful exposure might or might not have led to the
disease would be liable in full for the consequences even if it was more likely than not that some
other cause was to blame (let alone that it was not more likely than not that he was to blame)”. In
my view, nothing compels a similar result in Canada, and thus far, although Sopinka J.’s remarks in
Snell (quoted above at para 20) do not preclude it, courts in Canada have not applied a material
contribution to risk test in a case with a single tortfeasor.
[43] It is important to reaffirm that in the usual case of multiple agents or actors, the
traditional “but for” test still applies. The question, as discussed earlier, is whether the plaintiff has
shown that one or more of the defendants’ negligence was a necessary cause of the injury. Degrees
of fault are reflected in calculations made under contributory negligence legislation. By contrast, the
material contribution to risk approach applies where “but for” causation cannot be proven against
any of multiple defendants, all negligent in a manner that might have in fact caused the plaintiff’s

injury, because each can use a “point the finger” strategy to preclude a finding of causation on a
balance of probabilities.
[44] This is not to say that new situations will not raise new considerations. I leave for
another day, for example, the scenario that might arise in mass toxic tort litigation with multiple
plaintiffs, where it is established statistically that the defendant’s acts induced an injury on some
members of the group, but it is impossible to know which ones....
C. Summary
[46] The foregoing discussion leads me to the following conclusions as to the present state of the
law in Canada:
(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that
she would not have suffered the loss “but for” the negligent act or acts of the
defendant. A trial judge is to take a robust and pragmatic approach to determining if
a plaintiff has established that the defendant’s negligence caused her loss. Scientific
proof of causation is not required.
(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct
materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has
established that her loss would not have occurred “but for” the negligence of two or
more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff,
through no fault of her own, is unable to show that any one of the possible tortfeasors
in fact was the necessary or “but for” cause of her injury, because each can point to
one another as the possible “but for” cause of the injury, defeating a finding of
causation on a balance of probabilities against anyone.
[LeBel and Rothstein JJ delivered a dissenting judgment in which they agreed with the substance of
the majority’s causation analysis but disagreed on the appropriateness of ordering a new trial,
preferring to dismiss the action (as the Court of Appeal had done) on the basis that “but for”
causation had not been proved and the material contribution test did not apply.]
Appeal allowed, LEBEL and ROTHSTEIN JJ. dissenting.

Ediger v Johnston
2013 SCC 18, [2013] 2 S.C.R. 98
[1] Rothstein and Moldaver JJ. — Cassidy Ediger, now 15 years old, suffered
from persistent bradycardia during her birth that caused severe and permanent brain damage,
leaving her with spastic quadriplegia and cerebral palsy. Cassidy, by her guardian ad litem, sued
Dr. William G. Johnston, the obstetrician who delivered her, alleging that her injury resulted from
negligence associated with an attempt to deliver her using a mid-level forceps procedure. The trial
judge found that Dr. Johnston breached the standard of care expected of him in the circumstances
by failing to ensure that back-up surgical staff would be immediately available to deliver Cassidy by
Caesarean section (“C-section”) upon complications arising from the mid-level forceps delivery,
and by failing to inform Cassidy’s mother about the material risks associated with the forceps
procedure. The only issue before us is whether the trial judge committed a palpable and overriding
error in determining that Cassidy’s injury was caused by these breaches. In our view, there was no
such error.
I. Facts
[2] Cassidy was born on January 24, 1998, to Carolyn and Scott Ediger. Early in
the course of Mrs. Ediger’s pregnancy, her family physician, Dr. Lisa LeGresley, referred her to Dr.
Johnston based on a concern unrelated to the injury Cassidy ultimately sustained at birth.
[3] Mrs. Ediger consulted Dr. Johnston throughout her pregnancy. Based on a
number of factors, Dr. Johnston considered her pregnancy to be high risk. As a result, he decided to
induce the pregnancy before term, at 38 weeks. It is undisputed that the factors that made Mrs.
Ediger’s pregnancy high risk are irrelevant to Cassidy’s subsequent injury.
[4] On January 23, Mrs. Ediger was admitted to Chilliwack General Hospital and
Dr. Johnston began the induction process. The next day, Mrs. Ediger’s labour stalled, despite
contractions that were strong in duration and intensity. Dr. Johnston determined that the baby was
in deep arrest with its head positioned sideways. He therefore elected to proceed with a mid-level
forceps rotation to deliver the baby. A forceps delivery involves positioning a forceps blade on
each side of the baby’s head and assisting the baby through the birth canal. A “mid-level” forceps
delivery is the riskiest type of forceps delivery that obstetricians are permitted to attempt because it
takes place when the baby is at the beginning of the birth canal. In this case, the baby’s head had to
be rotated before the baby could be assisted through the remainder of the birth canal.
[5] Dr. Johnston did not anticipate that anything would go wrong with the mid-
level forceps procedure and therefore did not inform Mrs. Ediger of the potential risks associated
with it. These risks included compression of the baby’s umbilical cord, leading to persistent fetal
bradycardia (a sustained drop in the baby’s heart rate prior to delivery), which may in turn cause
severe brain damage.

[6] Dr. Johnston attempted the forceps procedure while Mrs. Ediger was in a
regular labour room, located close to a high risk operating room that was used to perform C-
sections. Prior to initiating the forceps procedure, Dr. Johnston did not inquire into the availability
of an anaesthetist or operating room staff to assist with an emergency C-section in the event that
complications were to arise during the forceps attempt.
[7] According to the evidence accepted by the trial judge, Dr. Johnston applied
the first forceps blade and attempted to apply the second forceps blade. Unhappy with the
placement of the second blade, however, he elected to abandon the forceps procedure and proceed
with a C-section.
[8] At that point, Dr. Johnston left the labour room to make arrangements for a C-
section. He contacted the on-call anaesthetist, Dr. Charles Boldt, to assist. Dr. Boldt informed Dr.
Johnston that he was occupied with an emergency life or death surgery in another operating room
and anticipated that he would be unavailable for another hour. Dr. Boldt suggested that Dr.
Johnston contact the next on-call anaesthetist, who was off site but could arrive within 30 minutes.
[9] While Dr. Johnston was attempting to make these arrangements, Dr.
LeGresley, who remained in the labour room with Mrs. Ediger, saw the baby’s heart rate drop on
the heart rate monitor. Dr. LeGresley, over the course of 20 to 30 seconds, confirmed that the drop
continued, indicating persistent fetal bradycardia. She then called out to Dr. Johnston that Mrs.
Ediger needed an emergency C-section.
[10] When Dr. Johnston returned to the room, he attached a fetal scalp clip to the
baby’s head to confirm that the heart monitor observed by Dr. LeGresley provided an accurate
representation of the baby’s heart beat. Within approximately two minutes, he was able to confirm
persistent bradycardia. It is undisputed in these proceedings that the persistent bradycardia resulted
from an obstruction of the baby’s umbilical cord.
[11] At this point, Dr. Johnston again contacted Dr. Boldt, who was still occupied in
the other emergency surgery, and informed him that Mrs. Ediger needed an emergency C-section.
Mrs. Ediger was transferred to the high risk operating room, where she was prepped for surgery. In
the meantime, Dr. Boldt stabilized his patient and rushed over to anaesthetize Mrs. Ediger. On
arrival in the operating room, Dr. Boldt anaesthetized Mrs. Ediger and then Dr. Johnston delivered
Cassidy by C-section.
[12] In the end, Cassidy was delivered approximately 20 minutes after Dr.
Johnston’s failed forceps attempt (approximately 18 minutes from the onset of bradycardia). As a
result of the sustained bradycardia, Cassidy suffered severe and permanent brain damage. She lives
her life with spastic quadriplegia and cerebral palsy. She is non-verbal, tube-fed, confined to a
wheel chair and totally dependent on others for all of her daily needs. Her life expectancy is 38
years.
II. Procedural History

A. Supreme Court of British Columbia, 2009 BCSC 386 (CanLII), 2009 BCSC 386, 65 C.C.L.T.
(3d) 1

[13] Cassidy filed a statement of claim in the Supreme Court of British Columbia
alleging that Dr. Johnston was negligent in his attempt at a forceps delivery. In particular, she
alleged that the standard of care required Dr. Johnston to perform the forceps procedure with a
“double setup”. In the alternative, Dr. Johnston was required to arrange for back-up staff that would
be immediately available to deliver Cassidy by C-section if the forceps procedure failed. Cassidy
also alleged that Dr. Johnston was negligent for failing to obtain Mrs. Ediger’s informed consent to
the forceps procedure because he did not advise her of the material risks associated with the mid-
level forceps procedure.
[14] A great deal of the evidence at trial focused on whether a “double setup” was
required by the standard of care for mid-level forceps deliveries. Where a double setup is used, the
forceps delivery is performed in an operating room with an anaesthetist and operating room staff
standing by, and all of the materials for a C-section prepped. If the forceps procedure fails, the
mother’s legs are lowered, her abdomen is painted with an antiseptic and the baby is delivered by
C-section. The evidence at trial indicated that in a double setup situation, a baby could be delivered
by C-section two to five minutes from the time a forceps procedure is abandoned.
[15] In her reasons for judgment, Holmes J. rejected Cassidy’s claim that the
standard of care at the time mandated a double setup. Holmes J. acknowledged the testimony of
some experts who stated that the well-recognized high risks associated with a mid-level forceps
delivery required a double setup. Although she agreed that the trend was to perform these
procedures with a double setup, she accepted the testimony of Dr. Johnston and his experts that, at
the time of Cassidy’s delivery, it was not uncommon to proceed without a double setup.
[16] Holmes J. agreed with Cassidy, however, that the applicable standard of care
incorporated the less stringent requirement that surgical back-up be “immediately available” to
deliver the baby by C-section upon failure of the mid-level forceps attempt, consistent with the
guidelines of the Society of Obstetricians and Gynaecologists of Canada. She found that Dr.
Johnston did not meet this standard of care. According to Holmes J., when Dr. Johnston initiated
his forceps attempt, he faced a non-urgent scenario and had time to assemble a surgical team.
Instead, however, he took “no steps” to ensure that surgical back-up would be immediately
available (para. 94). Holmes J. emphasized that Dr. Johnston had not even inquired as to whether
the on-call anaesthetist was available prior to initiating the forceps procedure. As a result,
Dr. Boldt [the anaesthetist] and his nursing staff were “present” in the hospital only in the
most literal sense, when Dr. Johnston attempted the mid-forceps delivery. They were
completely occupied with another very high-risk situation, and expected to remain so
occupied for at least another hour. No other anaesthetist was in the hospital or even
formally on-call . . . . [para. 83]
Holmes J. found that, by proceeding in the manner that he did, Dr. Johnston breached the standard
of care expected of a physician in the circumstances.
[17] Holmes J. also found that Cassidy had established causation. In particular, she
found that Dr. Johnston’s forceps attempt was a “but for” cause of the persistent bradycardia and

that Dr. Johnston’s failure to have surgical back-up immediately available was a “but for” cause of
Cassidy’s injury. She concluded:
In the result, back-up was provided and Cassidy was delivered within about eighteen
minutes. This was probably the best possible outcome in the circumstances Dr. Johnston
had created when he proceeded with the attempt while Dr. Boldt was tied up with another
life and death situation. However, minutes mattered, and with the passage of time Cassidy’s
bradycardia had done its damage. Had back-up been available even five to ten minutes
more quickly, most — possibly even all — of Cassidy’s injuries could have been avoided.
[para. 138]
These causation findings, which are a subject of this appeal, are examined in detail below.
[18] Holmes J. also found that Dr. Johnston breached his duty to obtain informed
consent before proceeding with the forceps delivery by failing to advise Mrs. Ediger of the material
risks associated with the procedure. Holmes J. found it unnecessary to determine whether Mrs.
Ediger would have foregone the forceps procedure altogether if she were properly advised because
she found that, at the very least, Mrs. Ediger, properly informed, would have delayed the forceps
procedure until Dr. Johnston had arranged for immediately available surgical back-up. Given
Holmes J.’s earlier finding that Cassidy’s injury would have been avoided with surgical back-up, it
followed that Dr. Johnston’s failure to advise Mrs. Ediger also caused Cassidy’s injury.
[19] Holmes J. thus concluded that Cassidy had successfully established her
negligence claim. She awarded Cassidy $3,224,000 in damages, which included non-pecuniary
loss, special damages, future care and loss of earnings.
B. British Columbia Court of Appeal, 2011 BCCA 253 (CanLII), 2011 BCCA 253, 19 B.C.L.R.
(5th) 60
[20] The Court of Appeal for British Columbia allowed Dr. Johnston’s appeal. On
appeal, Dr. Johnston did not dispute the trial judge’s articulation of the standard of care expected of
him or the trial judge’s finding that his performance fell below that standard. With respect to his
liability for negligence, Dr. Johnston challenged only whether his breaches of the standard of care
had in fact caused Cassidy’s injury. The parties also cross-appealed on the damages award.
[21] Writing for a unanimous court, Smith J.A. held that the trial judge erred in
finding that Dr. Johnston’s breaches caused Cassidy’s injury for two reasons. First, the evidence
did not support the trial judge’s conclusion that Dr. Johnston’s forceps attempt caused the cord
compression and the resulting bradycardia that led to Cassidy’s injury. According to Smith J.A.,
“[t]he undisputed evidence was that fetal bradycardia would occur within seconds of cord
compression. Therefore, if Dr. Johnston’s attempted forceps delivery had caused the cord
compression, fetal bradycardia would have occurred almost contemporaneously with the forceps
procedure” (para. 86). Because the trial judge found that the fetal bradycardia began “within at
most one and two minutes” after the forceps attempt (para. 124), the bradycardia could not have
been caused by the forceps attempt.

[22] Second, Smith J.A. held that the trial judge erred in finding that Dr. Johnston’s
failure to have adequate back-up available caused Cassidy’s injury. Although it was conceded that
Cassidy probably would have been unharmed if she were delivered 10 minutes earlier, there was no
evidence that having a back-up team present would have sped up her delivery. Thus, it was not
established that Cassidy’s injury would have been avoided if Dr. Johnston had arranged for
immediately available surgical back-up or if Mrs. Ediger, properly informed, had delayed the
forceps attempt until back-up was available.
[23] Having found that Cassidy failed to establish causation, Smith J.A. allowed the
appeal and dismissed the action without considering Dr. Johnston’s appeal and Cassidy’s cross-
appeal as to the damages award. Cassidy now appeals to this Court.
III. Analysis
[24] An action for negligence requires proof of a duty of care, breach of the standard
of care, compensable damage, and causation (Hill v. Hamilton-Wentworth Regional Police Services
Board, 2007 SCC 41 (CanLII), 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 96). Here, Dr. Johnston
does not dispute that the first three requirements are met. He had a duty to meet the requisite
standard of care by arranging for surgical back-up to be “immediately available” before attempting
the mid-forceps procedure. And he had a duty to obtain Mrs. Ediger’s informed consent. He
breached both of these duties. Furthermore, as described above, Cassidy suffered severe and
permanent brain damage that leaves her completely dependent on her family and community for
care, clearly compensable damage.
[25] The sole issue here is causation: Did Dr. Johnston’s breaches of the standard of
care cause Cassidy’s injury?
[26] Dr. Johnston advances three arguments as to why the trial judge erred in
concluding that his breaches were the cause. The first argument relates to a threshold matter of
whether Cassidy’s fetal bradycardia was caused by the forceps procedure or would have arisen
independent of the procedure. Dr. Johnston submits that the fetal bradycardia would have occurred
independent of the procedure and thus his breaches of the standard of care leading up to the
procedure were not “but for” causes of Cassidy’s injury. Dr. Johnston’s second and third arguments
accept the premise that the forceps procedure caused Cassidy’s bradycardia and argue that causation
is not established because Cassidy’s injury would have occurred even if he had met the standard of
care. In particular, Dr. Johnston argues that even if he satisfied his duty to have an anaesthetist
immediately available, Cassidy would not have been delivered sooner. He also argues that even if
Mrs. Ediger, properly advised of the material risks of proceeding without back-up, would have
postponed the forceps procedure, there is no evidence that the result would have been different in
the postponed forceps attempt.
[27] In sum, the following three issues are raised with respect to causation:
(1) Did the trial judge err by concluding that Dr. Johnston’s attempted forceps delivery caused
the persistent bradycardia?

(2) Did the trial judge err by concluding that Dr. Johnston’s failure to arrange for “immediately
available” surgical back-up caused Cassidy’s injury?
(3) Did the trial judge err by concluding that Dr. Johnston’s failure to advise Mrs. Ediger of the
material risks of a mid-level forceps procedure caused Cassidy’s injury?
A. The Legal Test for Causation
[28] This Court recently summarized the legal test for causation in Clements v.
Clements, 2012 SCC 32 (CanLII), 2012 SCC 32, [2012] 2 S.C.R. 181. Causation is assessed using
the “but for” test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII),
2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22). That is, the plaintiff must show on a balance of
probabilities that “but for” the defendant’s negligent act, the injury would not have occurred
(Clements, at para. 8). “Inherent in the phrase ‘but for’ is the requirement that the defendant’s
negligence was necessary to bring about the injury — in other words that the injury would not have
occurred without the defendant’s negligence” (para. 8 (emphasis deleted)).
[29] Causation is a factual inquiry (Clements, at paras. 8 and 13). Accordingly, the
trial judge’s causation finding is reviewed for palpable and overriding error (H.L. v. Canada
(Attorney General), 2005 SCC 25 (CanLII), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56).
B. Did the Trial Judge Err by Concluding That Dr. Johnston’s Attempted Forceps Delivery
Caused the Persistent Bradycardia?
[30] It is undisputed that the persistent bradycardia that led to Cassidy’s injury was
caused by an obstruction of Cassidy’s umbilical cord. The issue is whether the obstruction was
caused by Dr. Johnston’s forceps attempt or whether it arose independently of the procedure. Dr.
Johnston submits that the obstruction arose independently of the procedure and thus the trial judge
erred when she concluded that Dr. Johnston’s failure to have back-up immediately available and
failure to obtain informed consent were “but for” causes of Cassidy’s injury.
[31] The trial judge concluded that it was more likely than not that Cassidy’s
umbilical cord became obstructed when it was compressed as a result of the forceps procedure. Dr.
Johnston’s argument against this conclusion tracks the Court of Appeal’s reasons. According to the
Court of Appeal, the evidence showed that “if Dr. Johnston’s attempted forceps delivery had caused
the cord compression, fetal bradycardia would have occurred almost contemporaneously with the
forceps procedure” (para. 86). This could not be reconciled with the trial judge’s finding that the
bradycardia began “within at most one and two minutes” of the forceps attempt. In the Court of
Appeal’s view, “[t]his was a critical finding of fact that had to be addressed by the trial judge”
(para. 87).
[32] With respect, the trial judge did address the gap in time between the forceps
attempt and the onset of the bradycardia. In particular, she considered testimony by Drs. Neal
Shone and Duncan Farquharson that a physician’s attempt to position the forceps blades may
displace the baby’s head such that the baby’s umbilical cord would become compressed upon a
subsequent maternal contraction. This sequence of events accounts for the delay between the end of

the failed forceps procedure and the onset of bradycardia. As the trial judge explained:
Dr. Shone explained the mechanics of potential cord compression in a rotational mid-
forceps procedure. . . . [W]ith the second blade applied, the head must be manoeuvred,
usually by twisting it out of the position in which it is lodged; that process creates space
around the baby’s head, and the cord may become trapped around the side of the head or
under the forceps blades.
Dr. Farquharson explained similarly that, for a rotational mid-forceps procedure, a

minor elevation or displacement of the baby’s head from its position firmly fixed against the
pelvis is necessary before the head can be rotated. He testified that if the umbilical cord is,
for example, alongside the baby’s cheeks or neck at the time of the minor elevation or
displacement of the head, the cord may slip down into the space created, and the next labour
contraction will compress the cord against the pelvis, causing umbilical obstruction. [paras.
125-26]
[33] Holmes J. expressly accepted this “displacement” theory as an explanation for

how Cassidy’s cord became obstructed. She recognized that this explanation was consistent with
Dr. LeGresley’s account of what had happened. Dr. LeGresley testified that Dr. Johnston applied
both forceps blades, but abandoned the forceps procedure because he was unhappy with the
placement of the second blade. This sequence of actions, the trial judge concluded, would have
created the space necessary for the umbilical cord to be trapped and compressed.
[34] Furthermore, as Holmes J. observed, the “displacement” theory set forth by

Drs. Shone and Farquharson, which is consistent with Dr. LeGresley’s account of the facts, explains
the gap in time between the forceps attempt and the cord compression. Holmes J. stated:
. . . some of the medical experts discussed or mentioned the effect of labour contractions,
which occur periodically and may cause adjustment of the relative positioning within the
birth canal. Thus, a displacement may not cause cord compression at the time, but a labour
contraction afterwards may cause further movement that forces the cord into the space
created earlier. [para. 132]
[35] Holmes J. thus addressed how the forceps attempt could have caused the
umbilical cord obstruction notwithstanding the gap in time between the procedure and the onset of
bradycardia. With respect, the Court of Appeal was incorrect to find that Holmes J.’s findings were
inconsistent.
[36] The Court of Appeal’s reasons also suggest that it understood the trial judge to
have improperly relied on Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, in order to
draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that the plaintiff in
medical malpractice cases — as in any other case — assumes the burden of proving causation on a
balance of the probabilities (pp. 329-30). Sopinka J. observed that this standard of proof does not
require scientific certainty (Snell, at p. 328; Clements, at para. 9). The trier of fact may, upon
weighing the evidence, draw an inference against a defendant who does not introduce sufficient
evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether

the defendant has introduced sufficient evidence, the trier of fact should take into account the
relative position of each party to adduce evidence (Snell, at p. 330).
[37] In the present case, there is no reason to believe that the trial judge failed to
follow the approach described above. At trial, Dr. Johnston introduced some evidence contrary to
the “displacement” theory of causation. Dr. Johnston testified that he never applied the second
forceps blade to the baby’s head. This was inconsistent with Dr. Shone’s explanation of the
“displacement” theory. According to Dr. Shone, it is the application of the second forceps blade
that requires the baby’s head to be manoeuvred, creating the space necessary for the umbilical cord
to become trapped, such that it is later compressed by maternal contractions. Holmes J.
acknowledged that Dr. Johnston’s testimony was inconsistent with the “displacement” theory. She
explained, however, that she rejected Dr. Johnston’s testimony because he had a weak recollection
of the facts and instead accepted Dr. LeGresley’s recollection that Dr. Johnston had applied both
forceps blades before abandoning the procedure.
[38] Dr. Johnston also testified that, contrary to Drs. Shone and Farquharson’s
“displacement” theory, applying both forceps blades would not create sufficient space for the
umbilical cord to slip and become trapped. He also adduced evidence of other possible causes of
umbilical cord obstruction, including a short, kinked or nuchal cord (where the umbilical cord is
wrapped around the baby’s neck).
[39] Faced with this conflicting expert testimony on the feasibility of the
“displacement” theory and evidence of other potential causes, it was incumbent upon Holmes J. to
weigh the evidence before her and determine whether Cassidy had proven causation on a balance of
the probabilities. Holmes J. ultimately concluded that Cassidy did satisfy this burden for three
reasons. First, as already described, Drs. Shone and Farquharson’s testimony regarding the physical
effects and distortions of labour contractions, as well as the timing of the steps leading up to a cord
compression, were consistent with what occurred here. Second, multiple experts testified that mid-
level forceps procedures are potentially dangerous and carry the risk of acute cord compression.
Third, the close proximity in time of the forceps attempt and the bradycardia supported the
conclusion that the forceps attempt was connected to the cord compression. As a result, Holmes J.
concluded that, although she could not be certain of the precise mechanics leading to cord
compression, “[t]he only reasonable inference from all the evidence is that the mid-forceps attempt
likely caused the cord compression that in turn caused the bradycardia” (para. 135).
[40] There was no palpable and overriding error in this conclusion. It was open to
Holmes J. to accept Drs. Shone and Farquharson’s testimony regarding the displacement theory
over Dr. Johnston’s testimony. It was also open to her to conclude that the close proximity in time
between the forceps attempt and the bradycardia, combined with the well-recognized risk of
bradycardia associated with mid-level forceps deliveries, supported a finding of causation in this
case.
C. Did the Trial Judge Err by Concluding That Dr. Johnston’s Failure to Arrange for
“Immediately Available” Surgical Back-up Caused Cassidy’s Injury?
[41] As we have described, the trial judge found that Dr. Johnston failed to meet the
standard of care applicable to mid-level forceps procedures because he failed to arrange for surgical

back-up that would be immediately available to deliver Cassidy by C-section upon the onset of
bradycardia. Dr. Johnston does not dispute that he breached the standard of care. He argues that
the trial judge erred in finding causation because Cassidy failed to show that her injury would have
been avoided if he had satisfied the standard of care. As we explain below, the trial judge did not
err. She found that the standard of care required Dr. Johnston to take reasonable precautions that
would have been responsive to the recognized risk of bradycardia and the severe damage to the
baby that results when bradycardia persists. The evidence shows that Dr. Johnston did not take
such precautions and, in our view, the trial judge made no error in finding that Dr. Johnston’s
failure to have back-up immediately available caused Cassidy’s injury.
[42] Although the ultimate issue before us is causation, the dispute here turns on a
proper understanding of the “immediately available” standard of care set forth by the trial judge.
Dr. Johnston’s argument is straightforward. He argues that the standard of care contemplated by the
trial judge required only that he ensure prior to the forceps procedure that the anaesthetist, Dr.
Boldt, was not in another surgery and was instead standing by to assist in the event of bradycardia.
Dr. Johnston concedes that had he delivered Cassidy within approximately 10 minutes, her injury
could have been completely avoided, but argues that Dr. Boldt’s presence alone would not have
made a difference in the time it took to deliver Cassidy. The delivery still would have taken 18
minutes from the onset of bradycardia and, thus, Cassidy’s injury would not have been avoided. He
supports his argument by pointing to evidence in the record indicating that it took approximately 13
minutes to confirm the drop in Cassidy’s fetal heart rate, move Mrs. Ediger to the operating room
and get her ready for surgery. At that point, just as Mrs. Ediger was ready for surgery, Dr. Boldt
arrived to anaesthetize her and Cassidy was born five minutes later. According to Dr. Johnston,
there is no evidence that Cassidy would have been delivered faster if Dr. Boldt had arrived earlier
and, thus, Cassidy failed to establish that the failure to have Dr. Boldt standing by caused her injury.
[43] We accept Dr. Johnston’s submission that the record does not establish that
Cassidy would have been delivered faster had Dr. Boldt arrived earlier than he did. Accordingly, it
would have been a palpable error for the trial judge to find that Dr. Boldt’s initial absence, on its
own, caused Cassidy’s injury. But we do not think that this accurately represents the trial judge’s
finding.
[44] The problem with the standard of care, as interpreted by Dr. Johnston, is that it
would be unresponsive to the risk in question and potential harm arising from it. Dr. Johnston reads
the trial judge’s reasons to say, in response to the risk of bradycardia, that he was required to have
an anaesthetist standing by. At the same time, he submits that having an anaesthetist standing by
would make no material difference in the ability to respond to bradycardia. As Dr. Johnston’s
counsel conceded at oral argument, Dr. Johnston’s interpretation of the “immediately available”
standard of care would mean that the attending physician would never be liable for breaching the
standard where fetal bradycardia results and leads to debilitating injury.
[45] We read the trial judge’s reasons differently. Considering them in their
context, and in light of the facts and evidence adduced in this case, we have no difficulty concluding
that the trial judge contemplated a standard of care that would have been responsive to the
recognized risk of fetal bradycardia associated with mid-level forceps deliveries. That standard of
care required Dr. Johnston to take reasonable precautions such that Cassidy could have been

delivered without injury upon the occurrence of bradycardia. It did not allow him to disregard that
risk, as he did here.
[46] The primary dispute at trial was whether the standard of care required a mid-
level forceps attempt to be performed with a double setup. As indicated, the expert testimony at
trial established that, with a double setup, the forceps procedure is performed in an operating room
with an anaesthetist and operating room staff standing by and all of the materials prepped for use. If
the forceps procedure fails, the mother’s legs are lowered, her abdomen is painted and the baby is
delivered by C-section. In such circumstances, full delivery takes two to five minutes upon a failed
forceps attempt.
[47] As Holmes J. recognized, the undisputed evidence at trial was that a baby
begins to suffer injury approximately 10 minutes from the onset of bradycardia. Dr. Alfonso
Solimano, a specialist in neonatology, testified that if a baby is delivered before the 10-minute
mark, the chances are very high that the baby will be born unharmed. It follows that with a double
setup delivery, damage should be avoided.
[48] Despite the evidence presented at trial that all hospitals providing obstetrical
care have the ability to provide double setups, and that such arrangements are commonplace for
mid-level forceps deliveries, the trial judge rejected Cassidy’s argument that the standard of care
necessarily required a double setup. After giving consideration to the costs and risks involved, she
found that the standard of care was more flexible, requiring only that surgical back-up be
“immediately available”, consistent with the guidelines of the Society of Obstetricians and
Gynaecologists of Canada.
[49] Although it is more flexible in that it does not contemplate the two-to-five
minute delay for delivery provided by a double setup, the “immediately available” standard of care
endorsed by the trial judge nonetheless requires that the attending physician take precautions that
are responsive to the risk of persistent fetal bradycardia resulting from the mid-level forceps
procedure. That the standard of care was tied to the risk and harm posed by the forceps procedure is
evident from the trial judge’s reasons. At the outset, for instance, the trial judge summarizes her
reasons by stating: “Minutes mattered, and because of Dr. Johnston’s failure to ensure that surgical
back-up was reasonably available, the damage was done before Cassidy could be delivered by
Caesarean section and resuscitated. Cassidy’s claim in negligence is proven” (para. 9 (emphasis
added)). Later, in assessing causation, the trial judge reiterated:
. . . minutes mattered, and with the passage of time Cassidy’s bradycardia had done its
damage. Had back-up been available even five to ten minutes more quickly, most —
possibly even all — of Cassidy’s injuries could have been avoided. Dr. Alfonso Solimano,
specialist in neonatology, testified that, according to undisputed clinical opinion, injury
begins in most cases at ten minutes from the onset of bradycardia; with delivery within ten
minutes, chances are very high that the baby will be uninjured. [para. 138]
The trial judge also recognized that although she did not find that the standard of care mandated a
double setup, the fact that “a sizable portion of the relevant medical community” concluded that the

double setup was required underscored the expectation that the reasonable practitioner take
precautions to protect against injury (para. 91).
[50] We acknowledge that the trial judge at times referred to a duty to have surgical
back-up immediately available and at other times referred to a duty to have inquired into the
availability of the anaesthetist. But we must read the trial judge’s reasons in their full context.
Doing so, we think the most logical reading of her reasons is that she considered the availability of
an anaesthetist to be a component of the broader duty to have surgical back-up immediately
available.
[51] It is beyond dispute that Dr. Johnston did not take precautions to ensure that, in
the event of bradycardia, Cassidy could have been delivered by C-section without injury. As the
trial judge observed, Dr. Johnston took “no steps” before beginning the mid-level forceps procedure
to have surgical back-up immediately available even though there was no urgency that precluded
him from doing so (para. 94). He did not even inquire into the availability of an anaesthetist.
Indeed, Dr. Johnston’s argument before this Court is centered on the premise that, given the
arrangements in place at the time he undertook the mid-level forceps procedure, Cassidy could not
have been delivered less than 18 minutes from the onset of bradycardia, long after severe injury
would have been all but guaranteed. That, as the trial judge found, fell below the standard of care.
[52] We do not suggest that a standard of care must prevent injury in all
circumstances, at all costs. Here, we simply interpret and apply the standard of care determined by
the trial judge, which was specific to the facts before the court.
[53] In sum, although Holmes J. did not find that the standard of care at the time of
Cassidy’s birth required Dr. Johnston to proceed with a double setup, she also did not find that the
standard of care permitted Dr. Johnston to act in a manner that disregarded the recognized risk of
bradycardia associated with a mid-level forceps rotation. Dr. Johnston was required, before he
initiated the forceps procedure, to take reasonable precautions that would have been responsive to
the recognized risk of bradycardia and the injury that results if bradycardia persists for more than 10
minutes. Because it is undisputed that Dr. Johnston failed to take these precautions, which would
have resulted in a faster delivery and likely prevented injury from bradycardia, the trial judge’s
causation finding is sound.
D. Did the Trial Judge Err by Concluding That Dr. Johnston’s Failure to Advise Mrs. Ediger of
the Material Risks of a Mid-level Forceps Procedure Caused Cassidy’s Injury?
[54] Having upheld the trial judge’s finding that Dr. Johnston’s breach of the duty to
have surgical back-up immediately available caused Cassidy’s injury, we need not consider whether
Dr. Johnston’s breach of the duty to obtain Mrs. Ediger’s informed consent caused Cassidy’s
injury. As we will explain, however, the trial judge’s informed consent analysis further confirms
the implausibility of the “immediately available” standard advanced by Dr. Johnston.
[55] The trial judge concluded that Dr. Johnston had a duty to obtain Mrs. Ediger’s
informed consent before proceeding with the forceps delivery. As part of that duty, Dr. Johnston

was required to inform Mrs. Ediger of the material risks associated with the procedure, including
the risk of persistent bradycardia. These conclusions are not challenged before this Court.
[56] In analyzing whether the failure to obtain informed consent caused Cassidy’s
injury, the trial judge did not make a finding as to whether Mrs. Ediger, properly advised of the
risks, would have foregone the forceps delivery altogether in favour of a C-section. She
acknowledged that there was conflicting evidence on this point. In particular, the evidence
established that “Mrs. Ediger’s primary concerns throughout her pregnancy and delivery were for
the health of her baby”, from which the trial judge had “no doubt” that “Mrs. Ediger would have
undertaken a risk to herself in order to avoid a risk to the baby” (para. 166). In addition, there was
some expert testimony that a prospective mother, properly advised of the risks, would opt for a C-
section. However, Dr. Johnston testified that in his experience, patients advised of the risks would
nevertheless opt for a forceps delivery.
[57] The trial judge found it unnecessary to decide whether Mrs. Ediger would have
completely foregone the forceps delivery because she found that, at the very least, Mrs. Ediger,
properly informed that surgical back-up was not immediately available to deliver Cassidy in the
event that complications arose, would have opted to wait until Dr. Johnston had arranged for such
back-up.
[58] The trial judge’s approach to the informed consent question is incompatible
with Dr. Johnston’s submission that his duty to have back-up surgical staff “immediately available”
required him only to confirm that an anaesthetist was present and unoccupied in the hospital, with
no further precautions. As we have explained, under Dr. Johnston’s version of the “immediately
available” standard of care, it would not have been possible to deliver Cassidy in less than 18 to 20
minutes, thereby making severe brain damage a virtual certainty upon realization of the risk of
bradycardia. If such injury were a virtual certainty, Dr. Johnston’s duty to obtain informed consent
would have included the duty to advise Mrs. Ediger that proceeding with the mid-level forceps
delivery included the risk of bradycardia, and that in the event that that risk materialized, her baby
would necessarily be born with severe and permanent brain damage because of the time required to
arrange for surgical back-up. Alternatively, she could proceed with a C-section, which primarily
poses risks to the mother. If Dr. Johnston were correct about the standard of care, we are confident
that the trial judge — who recognized that Mrs. Ediger’s “primary concern” was the health of her
baby and found “no doubt” that “Mrs. Ediger would have undertaken a risk to herself in order to
avoid a risk to the baby” (para. 166) — would have concluded that Mrs. Ediger would have
foregone the forceps delivery and opted instead for a C-section. In that case, there would have been
no mid-level forceps attempt, no resulting bradycardia, and no harm to Cassidy for that reason.
[59] This rather obvious incompatibility between the “immediately available”

standard of care advanced by Dr. Johnston and the trial judge’s actual reasons provides further
support for rejecting Dr. Johnston’s conception of the “immediately available” standard.
IV. Conclusion
[60] In sum, the trial judge did not err by finding that Dr. Johnston’s failure to have
surgical back-up immediately available before attempting the mid-level forceps procedure caused

Cassidy’s injury. It follows that there is no basis for interfering with the finding of liability made by
the trial judge.
[61] Because the Court of Appeal did not consider the parties’ appeal and cross-
appeal on the trial judge’s damages award, the matter is remitted to the Court of Appeal to consider
that issue.
[62] The appeal is allowed with costs to Cassidy throughout.

Janiak v Ippolito
[1985] 1 SCR 146
[Respondent was disabled as a result of a traffic accident and could not return to work. The
recommended surgical treatment entailed a 70 per cent chance of success, and if successful, a 100
per cent chance of recovery and the possibility of respondent's returning to work. Respondent,
however, feared surgery of any kind and refused to undergo the operation without his doctors'
assuring him of a 100 per cent chance of success; he remains disabled and out of work. The action
was limited, given appellant's admission of liability, to the issue of damages. The trial judge found
respondent was not entitled to damages in respect of pain or suffering or loss of earnings
consequent upon an unreasonable refusal to undergo the proper medical treatment. The Court of
Appeal adopted a similar line of reasoning but adjusted the award for loss of income upwards to
take into account the fact that recovery was not completely guaranteed.]

1 WILSON J.:-- The central issue in this case is how damages for personal injury are to be
assessed where the victim of the accident unreasonably refuses to undergo the recommended
surgery….
Unreasonable Refusal of Treatment

7 The single most noteworthy fact with which this appeal is concerned is that the trial judge
found the respondent to have been unreasonable in his refusal to accept the recommended medical
treatment…. There is no reason to conclude that Callaghan J. committed any error of law in
determining this issue in the case at bar….
8 It may, however, be opportune, since this Court now has the concept of reasonableness in
relation to a refusal of medical or surgical treatment before it, to make reference to some of the
difficult elements involved in a finding of unreasonableness before considering precisely how such
a finding affects the legal principles otherwise applicable on an assessment of damages.
Unreasonableness and the "Thin Skull" Doctrine

9 The first difficult issue which arises in assessing the reasonableness or otherwise of a plaintiff's
refusal of medical treatment is the extent, if any, to which subjective attributes of the plaintiff may
be taken into account by the court. In the case at bar it was submitted by the respondent that,
whether or not his refusal of treatment was perceived as objectively unreasonable, its source lay in
an innate fear of surgery which he could not be expected to overcome. Accordingly, he invoked a
variation of the long accepted principle that "if the wrong is established the wrongdoer must take
the victim as he finds him"….
10 It is, of course, well established that damages for aggravated injuries consequent on some pre-
existing infirmity of the plaintiff are recoverable even if the infirmity is of a psychological nature….

11 The key word, however, is pre-existing. Once it is acknowledged that there is such a thing as a
"psychological thin skull", the inquiry shifts to (a) the timing and (b) the nature of the alleged
psychological infirmity.
Timing
12 With regard to timing, it would seem that the very concept of a thin skulled plaintiff embodies
within it the notion that the oversensitive condition was pre-existing at the time of the injury. That is
to say, where the ultimate consequence of which the plaintiff complains is not due to the impact of
the defendant's wrongful act on some existing sensitivity of the plaintiff, but rather arises only
subsequent to the injury and independent of any intrinsic physiological or psychological problem
for which the tortious act has served as a catalyst, the ordinary rules of recoverability apply. By way
of illustration, where a blow to the plaintiff's chest inflicted by the defendant ultimately results in
the development of a malignancy, but there is no evidence of any pre-existing susceptibility to such
a disease in the plaintiff, then the ordinary rules of causation apply…. On the other hand, where the
defendant's negligent act results in the plaintiff's lip being burned and, due to a rare pre-malignant
condition of the plaintiff, this burn turns into a fatal malignant growth, then the pre-existing "thin
skull" serves to displace the otherwise applicable rules of causation: Smith v. Leech Brain & Co.,
[1962] 2 Q.B. 405.
13 The same dichotomy must presumably apply to cases of a psychological thin skulled plaintiff.
A significant distinction has to be made between persons who subsequent to an accident develop an
emotional or psychological infirmity and those who bring a pre-existing emotional or psychological
infirmity to the accident. The question posed by the kind of case we have here is: do persons in the
latter group have to meet the objective test of reasonableness when their refusal of medical help is
being assessed by the trier of fact or are their subjective attributes to be given due consideration?
….
23 It would appear … on the English authorities that a psychological "thin skull" developed
subsequent to the tortious act is not a factor that can be considered in relation to reasonableness: the
objective test prevails in the absence of any pre-existing condition.
Nature
24 The other element that has to be considered in determining whether the objective test of
reasonableness applies to the decision made by the alleged thin skulled plaintiff is the nature of the
pre-existing psychological infirmity. It is evident that not every pre-existing state of mind can be
said to amount to a psychological thin skull. It seems to me that the line must be drawn between
those plaintiffs who are capable of making a rational decision regarding their own care and those
who, due to some pre-existing psychological condition, are not capable of making such a decision.
As pointed out by Professor Fleming, a plaintiff cannot by making an unreasonable decision in
regard to his own medical treatment "unload upon the defendant the consequences of his own
stupidity or irrational scruples": Fleming, The Law of Torts (6th ed. 1983), p. 226. Accordingly,
non-pathological but distinctive subjective attributes of the plaintiff's personality and mental
composition are ignored in favour of an objective assessment of the reasonableness of his choice.
So long as he is capable of choice the assumption of tort damages theory must be that he himself
assumes the cost of any unreasonable decision. On the other hand, if due to some pre-existing
psychological condition he is incapable of making a choice at all, then he should be treated as

falling within the thin skull category and should not be made to bear the cost once it is established
that he has been wrongfully injured.
….
26 …. In their text on Personal Injury Damages in Canada (1981) Professors Cooper-Stephenson

and Saunders point out that no clear position has emerged from the Canadian jurisprudence in this
area although cases such as Elloway, supra, and McGrath, supra, suggest that a plaintiff in Canada
may not be held to an objective standard of reasonableness which it is beyond his capacity to attain.
This position would appear to most appropriately complement Fleming's assertion that where a
plaintiff does not suffer from a constitutional incapacity to act reasonably he cannot make the
defendant bear the burden of his unreasonable behaviour. Thus, the analytic focus in each case is on
the capacity of the plaintiff to make a reasonable choice.
Unreasonableness and Conflicting Medical Opinions

27 Another problem trial judges face in assessing the reasonableness of a plaintiff's decision
whether or not to have medical or surgical treatment is the way in which he is expected to handle
conflicting medical opinions.
28 In Asamera Oil Corp. v. Sea Oil & General Corp., [1979] 1 S.C.R. 633, Estey J. stated at p.
649 that "A plaintiff need not take all possible steps to reduce his loss". He is only bound to act like
"a reasonable and prudent man"…. The steps he takes … "ought not to be weighed in nice scales".
29 What guidance, if any, do these very general observations afford an injured plaintiff
confronted with conflicting medical advice and varying prognosis for the outcome of treatment?....
It would appear from the authorities that as long as a plaintiff follows any one of several courses of
treatment recommended by the medical advisers he consults he should not be said to have acted
unreasonably.
30 As a qualification to the general principle that a plaintiff's actions must not be subjected to an
overly critical standard of review, the English courts have suggested that in determining what steps
he ought to take the plaintiff should consider the defendant's interests as well as his own. In
Darbishire v. Warran, [1963] 1 W.L.R. 1067 (C.A.), the court pointed out that, while the plaintiff
may have acted reasonably as far as he was concerned, the true question was whether the plaintiff
acted reasonably as between himself and the defendant and in view of his duty to mitigate the
damages: per Harman L.J., at p. 1072; Pearson L.J., at p. 1076. It should be noted that this rule has
never been adopted in Canada….
31 In making his finding as to the reasonableness or otherwise of a refusal of medical treatment,
the trier of fact will also, of course, take into consideration the degree of risk to the plaintiff from
the surgery …, the gravity of the consequences of refusing it …, and the potential benefits to be
derived from it….
The Onus of Proof of Reasonableness

32 While a plaintiff has the burden of proving both the fact that he has suffered damage and the
quantum of that damage, the burden of proof moves to the defendant if he alleges that the plaintiff
could have and should have mitigated his loss. That this is the law in Canada has been clearly stated
by this Court….

The Consequences of an Unreasonable Refusal of Treatment
36 Turning now to the implication of a finding of unreasonableness for the plaintiff's recovery, it
is clear that the so-called "duty to mitigate" derives from the general proposition that a plaintiff
cannot recover from the defendant damages which he himself could have avoided by the taking of
reasonable steps. As Pearson L.J. pointed out in Darbishire v. Warran, supra, it is not a "duty" in the
strict sense. A breach of it is not actionable. Quoting from his reasons at p. 1075:
... it is important to appreciate the true nature of the so-called "duty to mitigate the
loss" or "duty to minimize the damage." The plaintiff is not under any contractual
obligation to adopt the cheaper method: if he wishes to adopt the more expensive
method, he is at liberty to do so and by doing so he commits no wrong against the
defendant or anyone else. The true meaning is that the plaintiff is not entitled to
charge the defendant by way of damages with any greater sum than that which he
reasonably needs to expend for the purpose of making good the loss. In short, he is
fully entitled to be as extravagant as he pleases but not at the expense of the
defendant.
37 Mitigation has to do with post-accident events. In this respect it should perhaps be contrasted
with contributory negligence and perceived as more closely aligned with novus actus interveniens.
It differs from the latter, however, in that the novus actus may be the act of a third party whereas
mitigation (or its failure) is exclusively the act of the claimant. Overhanging all three concepts,
mitigation, contributory negligence and novus actus, are the general principles of foreseeability and
remoteness as they apply to post-accident events.
38 The appellant in the case at bar invoked some of these general doctrines of tort law. He
submitted "that the majority in the Court of Appeal have failed to take into account the fact that the
plaintiff's unreasonable refusal constituted a novus actus and, from the defendant's standpoint, such
refusal was not reasonably foreseeable and the damages claimed are too remote". I do not find such
an approach helpful in a case of this kind. It seems to me that by hypothesis the whole of the
plaintiff's damages are reasonably foreseeable and would be recoverable were it not for the
additional fact that a portion of them was reasonably avoidable by the plaintiff. I have difficulty in
seeing how the failure to avoid what is a reasonably avoidable loss can in and of itself make the
remaining unavoidable loss unforeseeable. Nor, it seems to me, does the doctrine of proximate
cause, also invoked by the appellant, elucidate the problem. References to "proximate cause" and
"intervening cause", in my opinion, predetermine the legal issue but do not provide a rationale for
it….
39 What then counts as an unavoidable loss in a case like this where there has been found to be
an unreasonable refusal of surgery? The answer given by MacKinnon A.C.J.O. is that one looks to
what would have happened on a balance of probabilities had the operation in fact taken place. The
majority approach, on the other hand, is to determine what damages are avoidable by assuming that
the plaintiff has agreed to an operation which has not yet been performed. If the majority is correct,
then the courts would normally take account of any "substantial possibility" of failure and the
amount by which full compensation would be discounted -- in this case 70 per cent -- would
represent his avoidable loss.

40 There is a paucity of direct authority on this issue…. It seems to me not only to be implicit in
the English authorities but also to be common ground between the majority and the dissent in the
Court of Appeal in this case that, even after an unreasonable refusal of surgery, the plaintiff is still
entitled to claim unavoidable losses assuming, of course, that they are otherwise recoverable.
MacKinnon A.C.J.O. would, it is true, deny all subsequent recovery in this case where on the
balance of probabilities (70 per cent) surgery would lead to a full recovery, but if there was a 50-
100 per cent chance of no more than an 80 per cent recovery at the outside, it seems to me that his
approach would necessarily permit a plaintiff to recover the remaining 20 per cent of his damages
as unavoidable loss….
42 In my view the majority approach is consistent with first principles as expressed by Lord
Diplock in Mallett v. McMonagle, [1970] A.C. 166, at p. 176:
The role of the court in making an assessment of damages which depends upon its
view as to what will be and what would have been is to be contrasted with its
ordinary function in civil actions of determining what was. In determining what did
happen in the past a court decides on the balance of probabilities. Anything that is
more probable than not it treats as certain. But in assessing damages which depend
upon its view as to what will happen in the future or would have happened in the
future if something had not happened in the past, the court must make an estimate
as to what are the chances that a particular thing will or would have happened and
reflect those chances, whether they are more or less than even, in the amount of
damages which it awards.
…. [A]s the passage from Lord Diplock makes clear, the balance of probabilities test is confined to
determining what did in fact happen in the past. In assessing damages the court determines not only
what will happen but what would have also happened by estimating the chance of the relevant event
occurring, which chance is then to be directly reflected in the amount of damages. The general rule
stated by Lord Diplock would therefore seem to be applicable to this case, suggesting that the
majority approach is at least prima facie correct. The issue then becomes, it seems to me, a question
of whether there are any reasons to take this particular type of case outside the general rule.
43 MacKinnon A.C.J.O. suggests that the majority approach bypasses the trial judge's initial
finding of unreasonableness. With respect, I think he must be in error in this since the respondent is
precluded by that finding from claiming full compensation for the losses he has already suffered.
The same response can be made to the appellant's submission that the uncertainty in the evidence
results from the plaintiff's unreasonable conduct and that he ought not to be able to "profit" from it.
The finding that his refusal to undergo surgery was unreasonable precludes the plaintiff from
recovering his actual loss. To hold that his remaining compensation should be determined on the
basis of principles higher than those normally applied in assessing tort damages would, it seems to
me, be to punish him for not undergoing surgery. This would be contrary to the general judicial
policy that "it is not the prerogative of the court to require that any person undergo surgery to any
degree"….
44 Nor am I swayed by the appellant's submission that a respondent may, because he is free to
change his mind about the surgery, effectively be overcompensated. As long as he is bona fide in
his present claim that he does not intend to have the operation and is not deliberately taking a
calculated risk that he will come out ahead by recovering 30 per cent of his damages now and then

later have the surgery with a 70 per cent chance of complete success (an intention which would
amount to fraud on the court in any event), there does not seem to me to be any problem arising
from the fact that he might change his mind in the future and be overcompensated in the result. The
potential for over or under compensation is, it seems to me, a pervasive difficulty with the present
"once and for all" method of awarding tort damages. The situation presented by this case is only one
example of that more comprehensive problem; it does not, in and of itself, call for a special solution
of any sort. It should also be kept in mind that, while it is true that if the respondent does decide to
have the operation at some future time there is a 70 per cent chance that he will be somewhat
overcompensated, it is also true that there exists a 30 per cent possibility that he will be very
substantially undercompensated….
47 For the reasons given I would dismiss the appeal….

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TORTS

Professor John H. Currie

1. Allen M Linden, Lewis N Klar & Bruce Feldthusen, “Introduction:

2. Larin v Goshen (1974), 56 DLR (3d) 719 (NSCA). ......................................................... 25

3. Non-Marine Underwriters, Lloyd's of London v Scalera, [2001] 1 SCR 551 .................. 28

5. Harris v Glaxosmithkline Inc, 2010 ONCA 872 ............................................................... 46

6. Clark v Canada (1994), 20 CCLT (2d) 241 (FCTD) ........................................................ 50

7. Jones v Tsige, 2012 ONCA 32 .......................................................................................... 54

8. Cant v Cant (1984), 49 OR (2d) 25 (Co Ct) ..................................................................... 63

11. Norberg v Wynrib, [1992] 2 SCR 226. ............................................................................. 80

12. Health Care Consent Act, 1996, SO 1990, c 2, Schedule A, ss 8-31................................ 86

13. Malette v Shulman (1990), 72 OR (2d) 417 (CA). ............................................................ 95

15. R v Asante-Mensah, [2003] 2 SCR 3 .............................................................................. 112

16. Citizen’s Arrest and Self-defence Act, SC 2012, c 9 ....................................................... 121

17. R v Feeney, [1997] 2 SCR 13 .......................................................................................... 124

19. Stewart v Pettie, [1995] 1 SCR 131. ............................................................................... 146

20. Childs v Desormeaux, [2006] 1 SCR 643 ....................................................................... 151

22. Parental Responsibility Act, 2000, SO 2000, c 4 ............................................................ 164

23. Ryan v Victoria (City), [1999] 1 SCR 201 ...................................................................... 167

24. Clements v Clements, 2012 SCC 32 ............................................................................... 170

25. Ediger v Johnston, 2013 SCC 18 .................................................................................... 180

26. Janiak v Ippolito, [1985] 1 SCR 146 .............................................................................. 193

Nova Scotia Supreme Court Appeal Division

The judgment of the Appeal Division was delivered by MacDONALD, J.A.

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The Traditional Approach to Trespass is Justified as a Rights-Based Tort

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Elements of the Tort of Sexual Battery

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High Court of Justice, Divisional Court

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a) the proceedings must have been initiated by the defendant;

The damage to a man's fame, as if the matter whereof he is accused be

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The Regulatory Regime

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The Failed NOC Proceedings

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[32] As we shall see, that principle is applicable to the case at hand....

In the case at bar, based on the allegations pleaded in the statement of

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M. Rosenberg J.A.: I agree.

Karakatsanis J.A.: I agree.

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Federal Court of Canada [Trial Division]

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(b) Analysis and findings: