Table of Content

TABLE OF CONTENTS..................................................................................................................................................................... 1
INTRODUCTION............................................................................................................................................................................. 4
Ewaniuk v 79846 Manitoba Inc. (Bar) [1990].....................................................................................................................................5
Sources of Tort Law.............................................................................................................................................................................5
SHOULD TORT LAW BE REPLACED?.................................................................................................................................................................6
Blum & Kalven, Public Law Perspectives on a Private Law Problem: Auto Compensation Plans.......................................................7
Little, “Up with Torts”.........................................................................................................................................................................7
The Social Insurance Perspective: Sugarman, “A Restatement of Torts” (1992)................................................................................8
Atiyah, “The Injuries in the Twenty-First Century: Thinking and Unthinkable” (1996).......................................................................8
Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It..........................................................................9
INTENTIONAL TORTS.................................................................................................................................................................... 10
ASSAULT............................................................................................................................................................................................. 10
Herman v. Graves, 1998 ABQB 471..................................................................................................................................................11
Stephens v. Meyers, (1830) 172 ER 735............................................................................................................................................11
Babiuk v. Trann, (2003) SKQB 420....................................................................................................................................................11
BATTERY............................................................................................................................................................................................. 12
Consent.............................................................................................................................................................................................12
Informed Consent..............................................................................................................................................................................13
Allan v Mount Sinai Hospital, (ONSC, 1980).....................................................................................................................................14
Bettel v Yim (1978 – Toronto)...........................................................................................................................................................14
Malette v Shulman, (ONCA, 1990)....................................................................................................................................................15
H. (B.) v. Alberta (Director of Child Welfare), 2002 ABQB 371.........................................................................................................15
Norberg v Wynrib (1992, SCC)..........................................................................................................................................................16
E (Mrs) v Eve (1986 SCC)...................................................................................................................................................................16
Reibl v Hughes (1980, SCC)...............................................................................................................................................................18
Arndt v Smith, SCC.............................................................................................................................................................................18
Hollis v Dow Corning Corp (1995 SCC)..............................................................................................................................................18
SELF DEFENCE AND PROVOCATION................................................................................................................................................... 19
Wackett v Calder (1965, BCCA).........................................................................................................................................................19
Gambriell v Caparelli (1974, ON Count Court)..................................................................................................................................19
DEFENCE OF PROPERTY......................................................................................................................................................................20
DISCIPLINE OF CHILDREN................................................................................................................................................................... 20
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General).....................................................................20
TRESPASS TO LAND............................................................................................................................................................................ 21
Turner v Thorne and Thorne (Ontario High Court, 1959).................................................................................................................21
STRICT LIABILITY.......................................................................................................................................................................... 22
Rylands v Fletcher (1865, England)...................................................................................................................................................22
Richards v Lothian (1913, PC)...........................................................................................................................................................23
Read v J Lyons & Co Ltd (1947, HL)...................................................................................................................................................23
DEFAMATION.............................................................................................................................................................................. 24
Defences............................................................................................................................................................................................25
Globe & Mail v Boland (SCC, 1960)...................................................................................................................................................28
Defamation Act, RSA 2000................................................................................................................................................................28
Awan v Levant (2014 Ontario Superior Court)..................................................................................................................................29
Hay v Platinum Equities (2012 ABQB)...............................................................................................................................................29
Vander Zalm v Times Publishers (BCCA, 1980).................................................................................................................................30
WIC Radio v Simpson (SCC, 2008).....................................................................................................................................................30
Grant v Torstar Corp.........................................................................................................................................................................31
VICARIOUS LIABILITY................................................................................................................................................................... 33
London Drugs Ltd v Kuehne & Nagle Int’l Ltd (1992 SCC).................................................................................................................34
 Lister v Hesley Hall (2001, HL)...........................................................................................................................................................34
VICARIOUS LIABILITY CLAIMS FOR SEXUAL ASSAULT/ABUSE OF INDIGENOUS CLAIMANTS...............................................................35
Blackwater V Plint.............................................................................................................................................................................35
K.L.B v British Columbia (2003).........................................................................................................................................................36
NEGLIGENCE................................................................................................................................................................................ 38
Nature of Negligence........................................................................................................................................................................38
Defences............................................................................................................................................................................................39
FIRST ELEMENT: NEGLIGENT ACTS.....................................................................................................................................................39
Vaughan v Menlove (1837, CP).........................................................................................................................................................39
Buckley v Smith Transport (ONCA, 1946)..........................................................................................................................................40
Roberts v Ramsbottom (QB, 1980) [WRONG: DO NOT CITE]............................................................................................................40
Mansfield v Weetabix (CA, 1998)......................................................................................................................................................40
YOUTH...............................................................................................................................................................................................41
McHale v Watson (HCA 1966).......................................................................................................................................................................... 41
R v Hill (SCC 1986)............................................................................................................................................................................................ 42
McErlean v Sarel (ONCA 1987)........................................................................................................................................................................ 42
STANDARD OF CARE...........................................................................................................................................................................42
Learned Hand Test............................................................................................................................................................................43
Bolton v Stone................................................................................................................................................................................................. 43
Wagon Mound No 2 (PC 1967)........................................................................................................................................................................44
Latimer v AEC (HL, 1953)................................................................................................................................................................................. 45
Consolidation of Cases..................................................................................................................................................................................... 45
The Role of Statutes..........................................................................................................................................................................45
Saskatchewan Wheat Pool v The Queen (SCC 1983).......................................................................................................................................45
Whistler Cable Television v IPEC Canada Inc. (1992 BCSC) – cannot use on exam (WRONG)..........................................................................46
YO v Belleville (City) Chief of Police (1991 ONGD) – cannot use on exam (WRONG).......................................................................................47
Custom and Reasonableness............................................................................................................................................................47
Trimarco v Klein (NYCA, 1982).........................................................................................................................................................................47
The T.J Hooper (2d Cir, 1932)..........................................................................................................................................................................48
Malcolm v Waldick (1991 SCC)........................................................................................................................................................................ 48
Ter Neuzen v Korn (SCC 1995)......................................................................................................................................................................... 48
PROOF OF NEGLIGENCE..................................................................................................................................................................... 49
Byrne v Boadle (Exch, 1863)............................................................................................................................................................................ 49
Fontaine v British Columbia (SCC, 1998).......................................................................................................................................................... 49
STANDARD OF CARE IN MEDICAL NEGLIGENCE CASES.......................................................................................................................50
Sylvester v Crits.................................................................................................................................................................................50
Tailleur v Grande Prairie General......................................................................................................................................................50
Wilson v Swanson (SCC 1956)...........................................................................................................................................................51
LaPointe v Hopital Ve Gardeur..........................................................................................................................................................51
DUTY OF CARE.................................................................................................................................................................................... 53
Winterbottom v Wright (Exch, 1842) [Pre-Donoghue].....................................................................................................................53
Donoghue v Stevenson (HL, 1932)....................................................................................................................................................53
Deyong v Shenburn (1946, CA).........................................................................................................................................................55
Palsgraf v Long Island RR Co (NYCA, 1928) (little weight in Canada – do not use in Canada).........................................................55
Home Office v Dorset Yacht Co Ltd (1970 HL)...................................................................................................................................56
Anns v Merton Borough Council (1978, HL)......................................................................................................................................56
Caparo Industries v Dickman (1990, HL) – Two-part test overruled Anns........................................................................................................57
Cooper v Hobart (SCC 2001)..............................................................................................................................................................57
Practice Case.....................................................................................................................................................................................58
James v BC (2005 BCCA)....................................................................................................................................................................58
Childs v Desmoureaux (SCC 2006).....................................................................................................................................................59
DUTY TO RESCUE................................................................................................................................................................................60
Haynes v Harwood (CA 1935)...........................................................................................................................................................60
PSYCHIATRIC HARM (NERVOUS SHOCK)............................................................................................................................................ 61
Primary Victim...................................................................................................................................................................................61
Saadati v Moorhead (2017 SCC)...................................................................................................................................................................... 61
Secondary Victim...............................................................................................................................................................................61
Alcock v Chief Constable of the South Yorkshire Police (HL 1991) “Hillsborough Disaster”.............................................................................61
GOVERNMENT LIABILITY.................................................................................................................................................................... 63
 Kamloops v Nielson (1984, SCC)........................................................................................................................................................63
Just v BC (1989, BCSC/SCC)...............................................................................................................................................................64
CF Brown v BC (1994, SCC)................................................................................................................................................................64
Swinamer v AG Nova Scotia (1994, SCC)..........................................................................................................................................65
NEGLIGENT MISREPRESENTATION.....................................................................................................................................................66
Hedley Byrne & Co Ltd v Heller (HL 1963) “Donoghue v Stevenson of pure economic loss”............................................................66
Deloitte v Livent (2017 SCC) [Canada application of negligent misrepresentation].........................................................................67
CAUSATION........................................................................................................................................................................................ 69
Pre-emptive Causation......................................................................................................................................................................69
Duplicative Causation.......................................................................................................................................................................69
Lambton v Mellish (Ch D, 1894).......................................................................................................................................................................69
Corey v Havener (Mass SC, 1902)....................................................................................................................................................................70
Barnett v Chelsea & Kensington Hospital Mgmt Comm (QB, 1968).................................................................................................................70
Natural Cause + Tortious Cause........................................................................................................................................................70
Kingston v Chicago & NW Rwy (Wis SC, 1927).................................................................................................................................................70
Sunrise Co v The Lake Winnipeg (SCC, 1991)...................................................................................................................................................70
Apportionment of Loss Among Causes.............................................................................................................................................72
Athey v Leonati (SCC, 1996)............................................................................................................................................................................. 72
Factual Uncertainty...........................................................................................................................................................................73
Sindell v Abbott Laboratories (Cal SC 1980) – Do not apply, exercise to show courts made mistake..............................................................73
McGhee v National Coal Board (HL, 1972) – Commonwealth Courts approach..............................................................................................73
Snell v Farrell (SCC, 1990) – proof of causation with factual uncertainty in Canada........................................................................................74
Resurfice Corp v Hanke (SCC, 2007) – obiter, material contribution to the risk (confused – use Snell instead)..............................................74
Clements v Clements (SCC, 2012) – McLachlin clarifying reasoning in Resurfice.............................................................................................75
Exam Application for Causation........................................................................................................................................................75
REMOTENESS..................................................................................................................................................................................... 77
Re Polemis (ECA, 1921) – Do not apply (WRONG)...........................................................................................................................................77
Wagon Mound (No 1) (PC, 1961).....................................................................................................................................................................77
Mustapha v Culligan (SCC, 2008).....................................................................................................................................................................78
Smith v Leech, Brain and Co (QB, 1962) – thin skull........................................................................................................................................78
Cotic v Gray (ONCA 1981) – mental health and thin skull................................................................................................................................79
Novus Actus Interveniens..................................................................................................................................................................80
Bradford v Kanellos (SCC 1973).......................................................................................................................................................................80
DEFENCES........................................................................................................................................................................................... 81
Contributory Negligence...................................................................................................................................................................81
Butterfield v Forrester (KB 1809)..................................................................................................................................................................... 81
Davis v Mann (Exch 1842)................................................................................................................................................................................ 81
Froome v Butcher (ECA, 1975).........................................................................................................................................................................82
Voluntary Assumption of Risk...........................................................................................................................................................82
Dube v Labar (SCC 1986).................................................................................................................................................................................. 82
Crocker v Sundance Northwest Resorts Ltd (SCC 1988)...................................................................................................................................83
Waivers and Volenti........................................................................................................................................................................................ 83
Lambert v Lastoplex (SCC, 1971) [Labelling]....................................................................................................................................................83
Illegality.............................................................................................................................................................................................84
Hall v Herbert (SCC 1993)................................................................................................................................................................................ 84
INTRODUCTION

- Tort law can turn on a number of good, compelling, arguments

- IRAC Issue, Rule, Application, Conclusion
o What issue are the parties fighting about? What brought them to court?
o Once issue spotted – what legal rule helps solve the problem?
o Conclude – that defendant is negligent/Charge acquitted for example
- COMPLETE THE PRACTICE EXAMS
o Ogbogu will mark and provide feedback if sent to him

How to Read a Case

- Note the “style of cause”
- Who is Plaintiff and Defendant? Appellant and Respondent?
- What are the facts?
o The facts given in any case dealing with are the only facts available for resolve in that case
o Interpretation of the facts is important
o Cannot add or remove the facts
- Appeal? What happened at lower court?
o How influential the reasoning is
- Ratio is more influential/important
o Extract reasoning to find what the course actually decided

Tort: an unlawful interference with a person’s rights

- Only a tort if the law has defined it as a tort
- Built from rules dictated by judges
- A new tort can be defined at any time (no boundary)

What kind of rights do tort law care about?

- Personal / bodily integrity  personal injury or harm
- Property  property damage / financial loss
o Becoming rare (stealing property is more pervasive in criminal court)
- Good reputation  damage to reputation
o Defamation
- Privacy (emerging area of tort)  private affairs or concerns

Tort law protects you from certain kinds of harms to these rights

Tort law = body of legal rules and principles that govern CIVIL consequences of such interference
- Tort law only cares about CIVIL natures – relations between two PRIVATE parties
- Eg. Punched in the face
o Criminal law consequences through criminal law
o Private (Civil) law consequences dealt with through tort
Criminal?
- Of or relating to a crime  an offence prosecuted (almost exclusively) by a branch of government punishable by law
- Tort law = “not criminal”

Government can be involved in a tort law action

- Eg. Government sets up rules for commuting (ensuring safe roads) – negligent in maintaining the roads
- Can sue the government if it is a matter that tort law governs

PRIVATE LAW:
1. Property law: governs the ownership of a right (acquisition or control)
2. Contract law: governs the transfer of a right
3. Tort law: governs the protection of a right (from interference that causes injury or loss)

Tort Law vs. Criminal Law

 Criminal
o Administration of criminal justice is a public matter
o Criminal prosecutions are conducted almost exclusively by a branch of government
o Seeks to punish
o Guilty – she/he is punished
o BRD (Beyond Reasonable Doubt)
Tort
o Litigation is a matter between parties
o Action is brought at the initiative of the person who has suffered injury or loss
o Seeks primarily to compensate
o Victim is compensated for injury or damage suffered as a result of the tortfeasor’s conduct
o BOP (Balance of Probabilities)

 If the criminal law concludes and the defendant loses – can have great utility in civil claim for plaintiff

 Michael Jackson, OJ Simpson – got off on criminal trial, BUT settled in civil cliam because there is enough evidence

Ewaniuk v 79846 Manitoba Inc. (Bar) [1990]

Facts
 Ms. Ewaniuk was forcibly removed by bouncers from a bar and thrown into the parking lot. Ms. Ewaniuk falls heavily
and is injured.
Notes
 Lodge a complaint with the police?
o Bouncers may have committed a crime of assault causing bodily harm

STEP 1:
 Identify the particular tort that was committed
 Tort law is made up of discrete wrongs with their own definitions and requirements
o This case: BATTERY – any indirect or intentional interference with the person of another
STEP 2 (Who do you sue?):
1. The bouncers (employees)
2. Employer
a. Failure to take reasonable care to select, train, supervise or control its employees (negligence)
b. Tort committed in the course of employment (vicarious liability)

Result
 Bouncers committed unjustifiable battery
 Employer found vicariously liable
 Special damages: $450 (drugs to combat suffering, etc.)
 General damages: $10,000 for pain and suffering

Defence
 If you represented the corporation (employer), what arguments would you raise in defending the vicarious liability
claim?
o Show that the bouncer is not your employee (third party employee)
 Defences to battery claim?
o Was not intentional
o Defence of a third party (show they are a serious threat to the bar)

Was the judge right to award general damages in the case?

Sources of Tort Law

Common law is the primary law for tort law.

 Occasionally legislatures have stepped in to modify the law
 o Statues have greater power and can overrule common law rules

Purpose of Tort Law

 Compensation – provide relief to the person subject of wrongdoer
o Typically monetarily compensated
 Deterrence – helps individuals recognize risk, and deter them from the risk
 Justice – provides a forum for victims
 Redistrubtion of accident costs – spread cost of accidents across society.
 Advancing public policy – expression of public policy about taking care of yourself and others.
 Ombudsperson function – means of seeking justice against institutions
 Education

SHOULD TORT LAW BE REPLACED?

- Not a tool for solving social problems

- It solves one particular problem: when there is a dispute between two people
o Does not take a position on who erson A or B is
o It’s essence is it is a tool for solving the dispute

- Essentionalist reasoning
- Some arguments: what’s the point if you have to hire a lawyer to solve a dispute?
- Compensation may not solve the plaintiff’s problem
o May not solve the disability problem of the plaintiff
- “If tort law does not have a social conscience, we need to replace it”
- The essentialist: does not care about auto-compensation claims.
o Sorry, the system is set up this way
- Most cases in medical negligence: proof is extremely challenging to come about

Tort law tries to solve disputes between two parties. It may not solve all the problems, but it will provide compensation

Essentialist – tort law was not designed to solve these problems

- Don’t like it when people interpret tort law as failing to solve problems beyond tort law

Instrumentalists oppose essentialists

 Believe tort law (law) can be used in an instrumental fashion (used to solve problems)
 Believe it is the primary goal to solve these problems
 What’s the best way of avoiding wrongdoing?
 Any time you have the opportunity to do more (solve more problems with tort) you should do that

Instrumentalists on vicarious liability – they have the ability to pay, they are the ones who you can turn to to settle systems
(accidents).
- Policy reasons – let’s make them pay because they have the means to solve these problems.

(Aside: Sequential causation – prove that a defendant’s negligence links to the harm caused to the victim.)

Failure of Tort Law Example:

 Medical malpractice (negligence) is extremely challenging to prove
o Doctor’s have established a defence through CNPA (organization of Doctor’s)
 New Zealand – system of no fault liability
o An accident is an accident – the government will take care of you no matter the fault

Fault
- The “mind” of the tortfeasor and its role in tort liability
 - Intentional Negligence
Intention to cause harm and/or Negligence  Fault
- No fault or strict liability
- Eg. Janitor failing to put up a “slippery when wet” sign
o Negligence (no intent)

- Set of facts can lead to an accident

Fault as a criterion of liability:

 Criticism of tort law – difficult to bring cases before courts and prove fault
 Essentialist – Tort law funcitons on this idea of fault. It needs to balanace the interests of the victim and defendant
 Instrumentalist: let’s forget about fault and solve the problem at hand

Blum and Kalven – Big ideas of law (fault) are imprecise and have a core meaning which moves toward ambiguity at the
margin
 Insurance premiums as a means to cure fault

Blum & Kalven, Public Law Perspectives on a Private Law Problem: Auto Compensation Plans

Various objections to fault as a criterion for liability, schematized as 3 general points:

1. We can never get enough facts about a particular accident to know whether fault was present or not;
a. Lack of competent witnesses, split-second time sequences
2. Even if we had a full history of the event we would be unable to rationally apply the fault criterion because it is
unintelligible;
a.
3. Even if we knew the history of the event and understood what fault meant, we would be deciding cases on the basis of
an unsound and arbitrary criterion.
a. Ie. Other factor’s when determining fault such as road engineering, traffic density, etc.

 Purpose of tort law is to compensate and not to punish

 Key concept for the law here is risk; what is constant in these situations is the amount of negligent risk taken – and this
is a factor which is independent of the harm that actually occurs
 The drivers who take more risks of a given magnitude (ie. Driving 80 mph through the city) are more likely to be in
accidents than those who take fewer risks of the same magnitude
 The basic difficulty with the common law fault rule in the auto world is that it leaves too many victims of auto
accidents uncompensated
o The common law never has had info about the incidence of recovery which would follow from the application
of its liability rules
o Its commitment to fault as a basis for shifting losses is independent of any estimates of how many losses will
thus be shifted.

Little, “Up with Torts”

The basis of the law of torts is to serve as a lawful civil mechanism to separate intolerable extremes of human behavior from the
vast bulk of behavior that society tolerates.


 Commission of a wrong  imports violation of right

 Tortious wrongs comprise intentional, wanton and malicious acts, negligent acts, and also “non-natural” acts that are
perilous to neighbors.
 Once the line between liability and impunity has been drawn, what then?
o Restoring the status quo is the target of tort remedy once liability is established. Compensation by the award of
money has become the typical tort remedy involving injury to persons and property.
o Compensation the most practical remedial expression yet discovered
 However, compensation is not the goal. Truncating moral wrongdoings of civilians is the goal.
**Institute a comprehensive compensation system for all victims of accidental injury:
Proportionality and mutuality:
 The ordinary person with self-help as his only remedy may be expected to confront the risks that are proportional to his
capacity to protect himself against and that are also proportional to the risks he has the capacity to expose others to.

More instutionalized activities become (complex societies):

 Self-help tort fades and personal accountability fades.
o This justifies more gov’t intervention

On one hand:
 Tort law is foundational to democratic governance (minimal government intervention, individual responsibility,
personal accountability)
 Cultural and political values exceed the economic cost it may have
On the other:
 Eliminate excesses,
 Institute nontort regulatory/compensation plans to regulate sophisticated societies

The true purpose of tort law is to stop people from behaving poorly.
 Compensation in the form of remedy is the most practical remedial expression yet discovered

If tort law is not telling people how to behave properly.. what is its purpose?

The Social Insurance Perspective: Sugarman, “A Restatement of Torts” (1992)

 Discussion of different methods to ensure proper compensation and behavior control

 Models do not have to be thought of as mutually exclusive, but overlapping to a degree

Five Competing institutional arrangements for handling accidents:

Libertarian Model
 Members of society rely primarily upon the market to determine standards of conduct and provide compensation for
accidental injuries.
 Voluntary market transactions determine the degree of risk people will accept in the goods and services they consume.

Conservative Model (historic tor law/liability insurance option)

 Gov’t establishes legal rights and wrongs with respect to risk-taking beyond those created by contract.
 Fault is the fundamental criterion by which both wrongdoing and the right to compensation are identified.
 Behavior is controlled through threats to assert rights via lawsuits claiming money damages.
 Law reinforces pre-existing inequalities in income and wealth that were upset by the event
 By compensating for intangible loss (pain and suffering), the law caters to individual feels of indignity and outrage

Liberal Model
 Focused compensation plans (ex. Workers’ compensation)
 Little weight on individual fault: larger institutional forces are thought to be responsible for causing most injuries, and
institutions are obligated to compensate
 Compensation not meant to be full

Collective Model
 More interventionist than Liberal model
 Accident individuals not singled out upon the type of accident suffered (auto, medical, product). Accident individuals
are treated as a much broader class of citizens
 Social insurance: compensate the protected class and its goal is to meet basic material needs
 Behavior control must be accomplished independent of compensation, through gov’t regulation

The Socialist Model

 Protects accident victims and others by nationalizing health care and providing a minium guaranteed income for all.
 Behavior control: collective commitment to risk-sharing
 o Less freedom for individual risk-taking

Atiyah, “The Injuries in the Twenty-First Century: Thinking and Unthinkable” (1996)

ARGUMENT: The action for damages for personal injuries should be abolished, and its replacement left to the free market.
Distributive Justice
 Redistribution of certain accident costs towards the higher paid classes.
 Movement to replace tort liability for personal injuries
o Narrow option: deal solely with road accidents and establish a no-fault system of compensation for traffic
related injuries
o Broader movement: national accident compensation system.

Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It

Essentialist vs. Instrumentalist

 Law of torts ought to have been better able to address the harms to individuals of Residential schools
 Residential school abuse survivors have sought redress in three ways:
1. Ordinary actions in tort as individual plaintiff
2. Survivors may also have claimed under a dispute resolution model negotiated with the feds, some
churches and the Assembly of FN
3. Class actions
 Three issues: difficulties in establishing credibility, challenges in dmage assessment, and vicarious liability

Credibility:
 Flexible standard for to prove on a balance of probabilities: “the seriousness of the allegations and the gravity of
consequences require a high degree of probability that the allegations are true.”
 Plaintiffs face insurmountable difficulties in trying to prevail over a defendant in a civil action for sexual abuse
 Residential school students lack merit due to their criminal background, cultural differences, etc.

Quantification of Damages:
 Enormous challenges result when quantifying the damages in sexual assault
 Tort law demands strict proof for past pecuniary (monetary) loss such as expenses or lost earnings
 Damage awards in such cases historically did not include pecuniary loss due to lost earnings/earning capacity. This is
changing now on recent appeals.
 Restitutio in integrum – restitution to original position.
 Measuring the original position is also a challenge – restitution upon the point at which the defendant is found liable
(rather than date entering residential schools)

Vicarious Liability:
 Holding a master strictly liable for torts committed by its servant in the course of employment.
 Bazley v. Curry: employer (non-profit corporation) was found vicarious liable for sexual assaults perpetrated by an
employee at a non-Aboriginal residential treatment facility for emotionally disturbed children.
 Blackwater v. Plint: hinged on decision in Bazley v. Curry – vicarious liability found for sexual assaults perpetrated by
a dormitory supervisor at an Aboriginal residential school.
o “Vicarious liability is generally appropriate where there is a significant connection between the creation or
enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.”
 E.b. v. Oblates of Mary Immaculate: employer (baker) sexually assaulted a Residential school student. Vicarious
liability not found as the job description removed the baker from putting him in “a position of power” over the students.

Sexual Assaults in General

 Limitation periods:
o Results in a challenge. There is no limitation period for sexual assault. The longer you wait, the more
challenging it is to prove the case.
 Standard for sexual assault:
o Standard is higher (between BOP and BRD)
 Government also sheds vicarious liability (we are removed from this)

 Question: Why are we using the tort system?

INTENTIONAL TORTS

 Assault, battery and trespass to land

Originate from “writ of trespass”

Accidental, Negligent and Intentional Conduct

 Define and categorize types of torts
 What is the nature of the defendant’s conduct?
o Determines whether or not a tory has been committed

Intentional conduct = intentional tort

Negligent conduct = tort of negligence
Not intentional, or not negligent  most likely not a tort (with the exception of strict liability)

Strict Liability: some accidents give rise to strict liability. Can get a defendant to compensate under this categorization.

Assessing the nature of the defendant’s conduct

1. What did that defendant know aand appreciate about the consequences of the act?
a. Would a reasonable person have pre-meditation to the consequences?

2. What steps did the defendant take to avoid such consequences?

Accidental conduct: the D could not have reasonably foreseen or reasonably prevented the consequences of the act

Negligent conduct: the D should have reasonably foreseen and avoided the results of the act but did not (ie. The defendant was
careless)

Intentional conduct: the D knew, with “substantial certainty”, the likely consequences of the act, or desired them

**Think of these three forms as a continuum, rather than three distinct conduct natures.

Negligent torts – much more difficult to prove than intentional torts.

Example:
 Facts: Donkey escapes from enclosure and gets hit by a car
 Result: Not reasonably foreseeable that the donkey would escape as the donkey was placed in an enclosure (carefully
done so)
o Good answer: Accident. However, if I knew more about the nature of the enclosure, it may shed light on the
level of negligence

ASSAULT

Assault: The threat of imminent physical harm

Direct and intentional act that causes a person to fear immediate physical or offensive bodily harm
 Imminent is an essential element as well.

The threat of battery (bodily harm)

 Pointing a gun or waiving a knife

 Assault is an independent cause of action

 Actual physical contact is not required

 The threat does not need to be carried out (just issued)
 Legal wrongdoing is interfering with the victim’s sense of security
o Protects you from ever being violated
  Psychological distress is harm: Psychological harm is the same as physical harm (SCC judgment)

Assault is actionable (per se) – do not need proof of harm

A D’s conduct must cause reasonable apprehension of imminent harm.

D is still liable if the threat was condition (“I’m going to shoot you unless you do what I say”)

Does not matter that the defendant did not have the actual ability to cause the threatened harm.

Example: D breaks into home with a musket and club and said, “if you open your mouth, I will strike you”.
 Conditional threat – still liable for causing reasonable apprehension of imminent harm
 Even if a threat is conditional, it is still an assault

Example: D and P arguing. The D comes out and points the gun at the P. Found later at trial the gun was not loaded. Assault?
 Answer: liable for assault, because it does not matter if the defendant had the ability to cause the threatened harm
o Also, caused reasonable apprehension of harm.

Herman v. Graves, 1998 ABQB 471

Facts Jackson was using Graves’ truck. She chased and tailgated Jesse, drove the vehicle into the rear of the car and forced it
to veer off the road to a vacant lot, where it stopped. Graves exited the truck and attacked Jesse. Jesse’s parents posted
a notice at Graves and Jackson’s household. Jackson claims that she was unaware of the notice.
Result Jackson used the motor vehicle as a weapon of assault. Jackson was not a joint tortfeasor in the assault and battery of
Jesse (by Graves). PUNITIVE DAMAGES AWARDED.
Reason Poor conduct by Jackson (ignoring the notice by Jesse’s parents)
Punitive damages awarded because Jackson seems to have the means to afford punitive damages.
Issue Did Jackson use Graves’ truck as a weapon of assault so as to promote the “intentional creation of the apprehension of
imminent harmful or offensive contact”?
Notes
 No physical contract is required for an action for damages for assault. Punitive damages can be awarded.

Stephens v. Meyers, (1830) 172 ER 735

Ratio The threat of assault is complete despite whether or not an individual has the ability to carry out the threat.
Facts P and D were at a meeting, with the P as the chairman. D sat 6-7 persons away from the P and acted very vociferous
(loud and forceful) during the meeting. The motion was made by the majority of the room to kick D out of the meeting.
D advanced towards P with a clenched fist and was stopped prior to being close enough to strike P. D said, “he would
pull the P out of his chair than leave the meeting”.
Result Verdict for the plaintiff. Damages awarded.
Reason Advancing with the intent to assault amounts to assault in the law. There must be the means of carrying a threat into
effect, which the judge believed to be true in this case.
Issue Does approaching one with the means of executing a threat, but physically unable to, constitute an assault?
Notes
 (Defendant) No assault committed because there was no power in the D (being far away) to execute threat. No means
to execute intention = no assault

Babiuk v. Trann, (2003) SKQB 420

Facts Babiuk (A) and Trann (R) were opposing players in a rugby match. Although evidence was contradictory b/w the
parties, the trial judge accepted evidence from R and teammates consistent. Some parties thought A intentionally
injured R’s teammate (stepped on teammates face and “raked”). Some parties thought R unjustifiably “sucker punched”
A. Trial judge accepted the former story as consistent. Nonetheless, R punched A in the face and broke his jaw in two
places. R was charged with assault causing bodily harm. Trial judge found R’ actions reasonable and did not constitute
assault.
Result Appeal dismissed. No damages.
Reason Trann only struck once, and the urgency to protect his teammate was justified. R was reasonable in his decision and use
of force.
Issue Was the defence of another (a teammate) a defence available at law in action for damages for assault?
If so, was the force used by Tran in defending Soulodre reasonable in the circumstances?
If Trann is found liable, what is the quantum of damages?
Notes
 Trial judge: striking an opponent in the face does not fall within the scope of the implied consent of the players to the
use of force
 Referenced in decision: Salmond on Torts 13th ed.: “It is lawful for any person to use a reasonable degree of force for
the protection of himself or any other person against any unlawful use of force. Force is not reasonable if it is either (i)
unnecessary or (ii) disproportionate.”

BATTERY

Direct, intentional, physical, unwanted (and unlawful) interference with the person of another.
 Not every touching of a person as unlawful
 “The slightest touching of another without their consent”
o Generally, that is what it takes to amount to a battery

“Intentional infliction of unlawful force on another person”

 Ancient and underused tort (formerly known as “trespass to the person”)

o Includes sexual assault, spousal and child abuse, incest

One of few torts that is actionable without proof of damage.

 Certain non-harmful inoffensive acts not battery
 Kissing (without consent, offensive) = battery by definition

Grey areas (don’t know if it is battery or not) – look at relationship between persons, surrounding circumstances, social
convention
 Actual bodily contact not only basis for battery. (eg. Throwing a stone at someone)
 Directness is the key:
o Defendant’s interference with plaintiff must be direct

Shared burden of proof

 Plaintiff = Prove direct, intentional, physical and not consented interference
 Defendant = prove conduct is not intentional OR that some defence applies

DEFENCES
1. Consent
a. Complete defence
b. Can be express (please beat me up)
c. Implied from the P’s conduct
i. Looking at circumstances, any reasonable person would understand consent
ii. Eg. Physician does not ask “do you consent to be touched”. Rather, the P would have consented to
wait in line, go into office, lie on the chair
o Challenge = “failure to resist or protest”
 Sexual assault cases – victims may not resist
d. Plaintiff gave free, full consent. Consent vitiated by duress (force or threat of force), alcohol, drugs will exploit
defence.
i. Additional note: Eg. Plaintiff is in a place of weakness to defendant (employee to employer)
e. Consent can be revoked
Consent

To Battery

Volenti: consent to be exposed to risk of harm. (Eg. Consenting to bungee jumping)

 NOT to be confused with volenti non fit injuria

Consent to battery is consent to actual harm, not the risk of harm

To Medical Treatment

Absent consent, all medical treatment is battery

Medical treatment must receive free and clear consent to proceed

 Treatment provider must obtain consent

 Competent patient can reasonably or reasonably refuse treatment
 Or give conditional consent
 And revoke consent at any time
o Challenge: If stopping will result in harm or danger to the person’s life.

“Providing care in good faith or with reasonable skill” is not a defence to failure to obtain consent

Voluntariness of Consent
 General rule: Consent is not voluntary if obtained by force or threat of force, under the influence of drugs/alcohol,
fraud, misrepresentation
o Norberg – SCC added one additional factor: exploitation of “power dependency” or relatively weaker plaintiff
 Doctor/patient relationship can fall under this “power dependency”

Informed Consent

Failure to obtain consent is not to be confused with failure to provide and obtain informed consent:
 Failure to obtain consent = battery
 Failure to provide and obtain informed consent = negligence

Prior to obtaining consent, physician must ensure that patient understands:

 Basic nature of the treatment
 The risk of proceeding/not proceeding with treatment/benefits
 All that a reasonable patient in similar circumstances would want to know
o Stringent and expansive duty
 If you fail to do this, the consent obtained is still valid, it is just NOT INFORMED  NEGLIGENCE

Failure to inform
 Failure to adequately inform prior to obtaining consent gives rise a distinct cause of action
 Not to be confused with failure to obtain consent
 Even if consent is obtained, failure to inform patient to standard required by law is a tort

Battery = failure to obtain consent

Negligence = failure to inform

Battery or negligence?
 In medical treatment cases, battery confined to cases where there has been NO CONSENT at all
o Or where consent was EXCEEDED
 Gone beyond consent (eg. Consent to surgery, not being touched on arm)
o Or where vitiated by duress, misrepresentation, fraud, drugs, etc.
 Failure to disclose attendant risks goes to negligence
  Negligence is not actionable  need to establish harm (linked to failure to disclose information)

Consent and capacity

Rule: Consent to medical treatment is only valid if given by capable individual
 “Capable” means ability to appreciate and understand:
o Nature of proposed medical treatment
o Potential risks and benefits
o Consequences of giving or refusing consent
 Age is NOT a determinant of capacity, just a factor to consider
o You can have a presumption that a person is not capable
o Generally, there is no set age for medical decision making
 PRESUMPTION: adults are capable of consenting, unless there is a reason to suggest they are not
 Subject to limits set by provincial statutes, capable minors can make their own medical decisions

Minors and capacity: special provincial rules (H.B v. Alberta follow-up)

 Quebec  minors 14 or older can consent alone to “medically necessary care” (Ogbogu thinks strange criteria)
 New Brunswick  Statutory age of consent to treatment is 16
 Manitoba  minors 16 or older are presumed capable of consenting to medical care
 In ON, minors can consent to treat if they meet the test for capacity under s. 4 of the Health Care Consent Act
o Where individual is incapable of consenting, a substitute decision make may act on his/her behalf
 These rules amount to “presumption of capacity”

Mental Capacity
 People tend to misinterpret mental illness with mental capacity
 Diminished capacity is a factual matter
o Dependent on the actual circumstances at the time the treatment decision has been made. CONTEXT specific
 If you lack the mental capacity  cannot make the decision
 Substitute decision-maker must act consistent with patient’s past wishes
o Or consistent with good faith determination of patient’s best interest

Allan v Mount Sinai Hospital, (ONSC, 1980)

Ratio Medical treatment must receive free and clear consent to proceed operation. Providing adequate and skillful care is not
a battery defence.
Facts P, Ms. Venita Allen, underwent D&C procedure at D’s hospital. D (anaesthetist), Dr. Hellman, administered the
anaesthetic during procedure. Before procedure began, P told D: “Please don’t touch my left arm. You’ll have nothing
but trouble there.” She has had some difficulty in the past with finding vein in left arm. D responded, “we know what
we are doing”. D administered needle in her left arm. P subsequently developed unusual complications and suffered
economic loss. Expert witness testified that D’s method was a “reasonable and customary one”.
Result Ordered special damages in full.
$4000 for general damages (pain and suffering, future loss).
Case overturned on appeal on technicality – P did not plead battery.
Reason No negligence – D exercised reasonable skill in operation.
Administration of anaesthetic is a surgical operation. To do so would constitute a battery unless the patient has
consented to it.
Without a consent, either written or oral, no surgery may be performed
This rule is an important aspect of the right to self-determination and individual right to have control over one’s own
body.
Physician’s duty to prove that consent was given. Clear from facts that P did not consent.
Because responsibility is founded in battery, D is liable for consequences (foreseeable or not). Anything that flows
from the battery!!
Issue Whether a physician is responsible for consequences flowing from the lack of consent to be touched?
Whether the absence of consent in a medical context results in battery?
Notes
 Even if nothing had gone wrong with the P, D would still have to pay nominal damages.
 Lindel J: Cases of failure to obtain consent are distinguishable from reibl
Bettel v Yim (1978 – Toronto)

Ratio If physical contact was intended, a wrongdoer is responsible for their actions despite whether the magnitude is
intended. Law of negligence and “foreseeability” should not be imported into intentional torts.
Facts P (Bettel), with a group of other boys, entered a store and went to the pinball machines. D told boys to leave the store.
Half the boys left (including P). D saw P lighting matches and throwing into store. Matches set a bag of charcoal on
fire, the D removed the bag from the store. The D did not see who had thrown the match which started the fire. The D
saw P walking out and grabbed him by the arm. The D shook the plaintiff to obtain a confession. Eventually the D’s
head struck the plaintiff’s nose. D phoned police.
Issue Is there liability for accidental harm?
Can an intentional wrongdoer be held liable for consequences which he did not intend?
Result Yim successfully sues for battery.
Reason Defence: argued that the shaking and the striking of the P are two separate events. “The contact to the plaintiff’s nose
was not intentional”
 If physical contact was intended, the fact that its magnitude exceeded all reasonable or intended expectations should
make no difference.
 Law of negligence is a concept that ought not be imported into the field of intentional torts.
 The intentional wrongdoer should bear the responsibility for the injuries caused by his conduct and the negligence test
of “foreseeability” to limit or eliminate liability should not be imported into the field of intentional torts.
Notes

Malette v Shulman, (ONCA, 1990)

Ratio Informed refusal still amounts to battery.

Facts P was severely injured and taken unconscious to emergency department of D hospital. Examined by D physician, who
ordered a blood transfusion. Nurse discovered card in P’s purse which read: “NO BLOOD TRANSFUSION! As one of
Jehovah’s Witnesses…. No blood or blood products… I Fully realize the implications of this position…”. Physical
deemed it medically necessary to save her life and proceeded with transfusion. P’s daughter arrived after transfusion
commenced and strongly objected. Since the D was unaware of circumstances under which card was signed, he was not
satisfied it still applied. Transfusion saved P’s life and she made good recovery from injuries. P brought suit for
negligence, assault and battery.
Result general damages of $20000 awarded.
Reason Physician’s actions amounted to battery: “interest in the freedom to reject, or refuse to consent to, intrusions of her
bodily integrity outweigh the interest of the state in the preservation of life and health and the protection of the integrity
of the medical profession”.
Doctor violated patient’s rights over her body by acting contrary to the card.
“Honest and even justifiable belief” that transfusion was medically necessary is no defence.
Informed refusal is still battery.
Issue Whether informed refusal still amounts to battery?

Notes:
 Only exception = true emergency where it is impossible to obtain consent
o True emergency = serious risk of harm to the life or health of an individual, individual is in no position to give
or refuse consent and it is not possible from the circumstances to deduce the individuals wishes. Harm has to
be imminent.
 Informed refusal is not to be confused with informed consent.

H. (B.) v. Alberta (Director of Child Welfare), 2002 ABQB 371

Ratio In A.B., a capable child (or mature minor) can make her own medical decisions if not a child meeting need for
protective services. If a child in need of protection or intervention, court or other SDM makes the decision. Capable
child’s opinion may be taken into consideration in “intervention decisions”, but may not be followed.
Facts B.H. is 16 and baptized member of Jehovah’s Witnesses (JW). She was diagnosed with leukemia at the Alberta
Children’s Hospital in Calgary. B.H. advised medical staff she would not consent to blood transfusions. Provincial
Court Judge attended hospital and commenced hearing. Director of Child Welfare was seeking medical treatment order.
Father of B.H. eventually consented; B.H. still refused. Judge Jordan findings: (1) Dr. Coppes consulted doctors and
results unanimous – recommended (transfusion) treatment was essential. (2) B.H. did not have life or developmental
experience to refuse treatment (necessary to life). (3) Law governed by another decision. (4) Reasonable limitation of
Charter – violated freedom of religion and right to equality.
Issues (1) Is the treatment essential?
(2) Is B.H. a mature minor?
(3) Does s. 2(d) of the CWA replace the common law principle of mature minor so far as it relates to a child who is in
need of protective services in the nature of essential medical treatment?
(4) Subject to the answers to the questions above, have B.H.’s rights under the Charter been violated? Justified?
What law governs? The common law “mature minor” rule or the CWA?
Result Appeal dismissed. (in favor of Alberta)
Reason (1)Treatment is essential – B.H. has access to the best experts. The findings of the treatment for leukemia are of interest
to the medical community. The treatment recommended is the only curative treatment available.
(2) Judge adopts a new standard for assessing role of “certain” minors and deems B.H. was a mature minor in the
common law sense – put aside the JW facts, B.H. is intelligent and sophisticated. If it is accepted that her religious
views have “sheltered her,” we are opening up future dangerous circumstances.
(3) CWA replaces common law principle of mature minor – language is clear, legislation occupies the field.
Evidence also states that B.H.’s best interests is to have the recommended treatment. The child’s capacity becomes only
one factor (not determinative).
A capable child’s opinion is to be taken into consideration but not necessarily followed in intervention situations
(4) CWA did not infringe on Charter or did so in a justifiable manner (s. 1 of Charter)
Notes
Ogbogu opinion: this statute is ridiculous.
 Director of welfare will come to put child into state protection
 If parent refuses treatment (not taking care of child)  will put child into Child Welfare
o Statue then describes rules of which a child in care of the state will be governed by
 “Mature minor” – minor who’s capable of making healthcare decisions based on the test articulated (V. arbitrary)
 Trial judge  created an unreasonable standard for a “mature minor.” Required her to read the bible, assess life and
reflect on decision based on religious views, etc..
o This case has arisen because trial judge has deemed the CWA rule to apply. If he/she did not make this
decision  would not have happened.
 Statutory framework “covers or occupies the field” – common law mature minor principle does not govern.

Norberg v Wynrib (1992, SCC)

Ratio Consent is vitiated when there is (a) power inequality between parties, and (b) defendant exploits that inequality
Facts Young female drug addict sued physician for, among other torts, battery. She was addicted to Fiorinal (codeine), a
prescription only drug. She tries different doctors, then stumbles across Dr. Wynrib, who agrees to write her
prescriptions in exchange for sexual favours. She agreed. At trial, Oppal J dismissed battery claim – ruled that she
voluntarily submitted, so consent defence applies. BCCA agreed on basis that there was implied consent to sexual
contact, and no force, threat of force, inducements, fraud, etc.
Issue Whether the consent defence applies to a “power dependency” relationship (doctor/patient).
Result SCC reversed appeal.
Reason (La Forest concurring) It is true that she did not resist or protest
o While this indicates consent.. it is not indicative of all cases. Consent must be voluntary. A position of
weakness can interfere with the freedom of a person’s will.
o Voluntary nature of consent can be vitiated by something other than force, threats or fraud
o Plaintiff’s autonomy/free will was compromised by “power-dependency relationship”
Two-step process: (1) proof of inequality between the parties. (2) proof of exploitation
Power imbalance plus exploitation of that imbalance means NO meaningful consent
Notes
 McLachlin with majority decision – utilizes legal reasoning (breach of fiduciary duty)
o Fiduciary law  trust in professional conduct
 Both concurring and majority reasoning is binding (not in conflict)
E (Mrs) v Eve (1986 SCC)

Facts Mother applied for permission to consent to the sterilization of her mentally retarded (“mildly to moderately”) daughter
who suffered from a condition that makes it difficult to communicate. The daughter = Eve. Mother was concerned Eve
would get pregnant and she would have to care for the child.
Issue Is it appropriate for the mother to consent for the sterilization of her daughter?
Result Application was denied.
Reasons Courts looked to apply the parens patriae. Parens patriae is not applicable as the jurisdiction is to do what is necessary
for the protection of the person for whose benefit it is exercised. The mother would become party to the benefit of this
exercise.
Further: the irreversible and serious intrusion on the basic rights of the individual is too great.
Legislature is the appropriate body to determine whether sterilization of the mentally incompetent is to be adopted.
Notes
 Parens patriae = the government, or any other authority, regarded as the legal protector of citizens unable to protect
themselves

Reibl v Hughes (1980, SCC)

Ratio Doctor must inform their patients of all material risks before the patient can give informed consent (including
discussion of serious or remote outcomes).
Facts Plaintiff had serious (elective) surgery to remove an occlusion in an artery. Suffers a massive stroke after surgery,
which leaves him permanently disabled. He consented to surgery, but claimed he was not told of risk of
stroke/paralysis. This, he claimed, was a particularly pertinent thing to know because the surgery could have been
deferred until after pension has vested and for daughter to get married. The plaintiff had 18 or 19 months to go before
earning a lifetime retirement pension with extended disability benefits. At trial, plaintiff succeeded. CA reversed: what
is relevant for informed consent purposes is best left to the doctor.
Issue What does the court do with facts that are not present?
Result
Reason Doctors are not the last word on what their legal obligations should be.
Legal test of disclosure is an objective standard, but one that is sensitive to the particular plaintiff’s situation
Standard: what would a reasonable patient want to know about the surgery in order to make a good decision?
A reasonable person in the plaintiff’s position would have forgone (or at least delayed) surgery.
Notes At trial, plaintiff succeeded. CA reversed: what is relevant for informed consent purposes is best left to the doctor.
 Modified objective test: what would a reasonable person in the plaintiff’s position want to know?
o What would this reasonable person in the plaintiff’s position have done with the information, if properly
disclosed?
 Eg. Even if the doctor knew life circumstances and doctor warns of all of the harms, what would a
reasonable person do?
 Incumbent upon the surgeon to obtain life circumstances and warn of risks that may have an effect on patient’s life
circumstances.
 Subjective element and objective element

Arndt v Smith, SCC

Facts Pregnant woman sees doctor because she had chicken pox. Wanted to know general information about her situation.
Doctor said it was “fine – no impact on child.” The child was born with deformities linked to chicken pox. Other
alternative was abortion. Sued, claiming for costs of raising the child with disabilities (more expensive).
Issue What would this reasonable person in the plaintiff’s position have done with the information, if properly disclosed?
Result
Reason Modified objective test applied. First question is not the issue, the second question is heart of issue. Based on
evidence – on BOP, we do not believe that the woman would have aborted the child.
Notes
 NOT INFORMED CONSENT LAW – this is just a lack of disclosure on the doctor’s behalf
 What would a reasonable pregnant woman want to know?
o Clear – they would want to know information about deformities
 What would the pregnant woman have done with the information?
o Courts have to look on BOP what the pregnant woman would have done.
  Woman argues: she doesn’t trust modern medicine and she would have aborted the child (second trimester)
 Physician opinion: given the risk that if I had given you a sense of what the risk was, no reasonable person would have
aborted the baby on a 50/50 chance.
o This was a woman who wanted to have a child  argues subjectively that she would not have aborted child on
these grounds

Hollis v Dow Corning Corp (1995 SCC)

Ratio Informed consent is still applicable with a “learned intermediary.” Patient has the right to be fully knowledgeable of
risks of undergoing and foregoing medical treatment.
Facts Hollis – a silicone breast implant ruptured approximately 17 months after it was implanted.
Issue Whether a manufacturer of silicone breast implants may be held liable in tort to a patient who suffers injuries from an
unexplained rupture when the manufacture has failed to give adequate warning to the patient or surgeon?
Result Appeal dismissed (in favor of Hollis)
Reason “Informed consent”  every individual has a right to know what risks are involved in undergoing or forgoing medical
treatment and a concomitant right to make meaningful decisions based on a full understanding of those risks.
Learned intermediary rule  Manufacturers must satisfy its duty to warn the ultimate consumer by warning the learned
intermediary of the risks inherent in the use of the product.
Modified objective test  would a reasonable woman in Ms. Hollis’ position have consented to the surgery if she had
known all the material risks? NO
Right to informed consent was not respected. Manufacturers should be held to a high standard of care when dealing
with such products.

SELF DEFENCE AND PROVOCATION

RULE: a person is entitled to use reasonable force to repel, or in response to, a battery or assault
 **Objective standard

Reasonableness of the force used is determined on a case-by-case basis, based on factors such as:
 Nature of attack, size and strength of opponent, degree of force required to repel the attack, whether a weapon was
involved, availability of other means to avoid the attack

 Courts look less kindly on provocation compared to self defence

o Could you have just walked away rather than being provoked?

Wackett v Calder (1965, BCCA)

Ratio Self defence is full or complete defence

Provocation is likely a partial defence (if there is opportunity to walk away or self defence cannot be proved).
Successful provocation defence may result in reduction of damages.
“Reasonable force” standard is fact-defendant.
An attacked person defending himself is NOT held to measure with exactitude the weight or power of the
attackers blows.

Facts Outside of a hotel, P(R) Calder reiterated insulting remarks and invited D(A) Wackett to engage in a fight. The P tried,
without success, to strike both the D and his brother. He lurched at them and hit their chests, doing no harm
whatsoever. The P struck the D, D hit P in the face and knocked him to the ground. The P got up and tried to attack
again. D hit him again to the ground (breaking a cheek bone of the P; P’s wrist was broken as well) and returned to the
bar, leaving P wanting to continue fighting.
Issue Did the D(A) use unreasonable and excessive force to defend himself?
Was the D provoked and is the provocation enough to act as a self-defence?
Result Appeal allowed.
Reason
 The plaintiff was capable of harming the defendant
o No evidence the P/R was physically incapacitated or uncoordinated (incapable of harming D/A Wackett).
 The A was entitled to reject force with force (blow for blow).
  An attacked person defending himself is NOT held to measure with exactitude the weight or power of the attackers
blows.
Notes
 Trial judge:
o The D/A should have known the P/R was intoxicated and that he should have walked away to terminate the
episode.
o Even if self-defence, defendant used excessive force to repel plaintiff’s attack.
o Ordered reduced damages to reflect the provocation
Self-defence and provocation
 The difference between the two defences is distinct because:
o Provocation – no physical force is coming your way
o Self-defence  repelling an attack

Gambriell v Caparelli (1974, ON Count Court)

Facts D’s son and P got into a fight in a back alley. D thought son was being choked and hit P over the head with a rake
Result D was defending a third person, and force used was reasonable.
Reason
 Case could be stronger if you actually have a relationship with the person
 This defence operates on the concept of reasonable force (fact dependent)
 Defence is not restricted to cases whether third person is a family member (Babiuk v Trann)
Notes
 Defence is something the defence has to prove on BOP
o A defence is technical

DEFENCE OF PROPERTY

In circumstances, possessor of land may use reasonable force to protect land from trespass

Cannot shoot first and ask questions later

 Have to make an attempt to get the trespasser to leave
 If trespass is “peaceful,” first request that the trespasser leave
 If not peaceful, no need to make preliminary request – force may be used immediately.

DISCIPLINE OF CHILDREN

Whether any force can be used to discipline children?

Tort law mirrors Criminal Code defence  s. 43 - Every schoolteacher, parent or person standing in the place of a parent is
justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does
not exceed what is reasonable under the circumstances.

 The fact that the standards are different (BRD vs BOP) does not matter. Because a defence is available under criminal
law, does not mean it cannot be used in tort.

Ogbogu: thinks this section is an oversight. “If a parent cannot control their emotions, they should be penalized.”

 Reasonableness: makes sure the state has something to say such that they are not completely robbing parents of their
ability to discipline children.

Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)

Facts The “Foundation” seeks a declaration that the s. 43 exclusion violates s. 7, s. 12 and s.15(1) of the Charter
Issue Constitutionality of Parliament’s decision to allow children’s parents and teachers to use “minor corrective force in
some circumstances without facing criminal sanction.”
Criminal Code s. 265 – prohibits intentional, non-consensual application of force to another.
Criminal Code s. 43 – excludes from this crime reasonable physical correction of children by their parents and teachers.
Result SCC placed limitations on the defence.

SCC placing limitation on the defence:

 Must be for “educative or corrective purposes”
 Must relate to “restraining, controlling or expressing disapproval of the actual behaviour of a child capable of
benefiting from the correction”
o “Benefiting from the correction” – if it’s a young child who does not understand why they are being corrected,
this would be a not be a valid form of correction. At what age is this a valid form of correction?
 Defence applies to parents and teachers
 Binnie J’s dissent: CC provision violates children’s equality rights
o You cannot deny to children something that would be criminal if done to adults
o But saved by s 1 for parents, but not teachers
 As a society, a judge can decide that we have sanctioned this notion that children can be treated in this
way.
o Parents can because of proximity of relationship
 Arbour & Deschamps JJ: different dissenting opinions, struck down the law
o Not clear if ruling applies to tort law
 The tort law defence will mirror the CC defence

TRESPASS TO LAND

Direct, intentional and physical interference with a person’s right to possession in land
 Renter, licenser, any form of possession of land
 Intention is a low threshold  if you walked into the land, that is enough
 Throwing stones into land  still trespass
 Complexity can come from how some people interpret intention.

Actionable without proof of damage

Three ways to commit trespass to land:

1) Entering land possessed by plaintiff without permission
2) Placing an object on land in plaintiff’s possession
a. Continuing trespass if object is not removed
b. New cause of action arises each day until object is removed
3) Plaintiff (occupier) revokes defendant visitor’s permission/license to be on property

Defences
 Consent
 Necessity
o Trespass necessary in situations of danger or emergency to prevent harm to trespasser or others
 Will this apply to a hiker seeking shelter from a severe storm?
 Courts will look at circumstance of this case  very fact dependent. Did the hiker act
reasonably?

In borderline cases, courts look at:

 Imminence of the danger
 Advantage to be gained (comfort versus life?)
 Availability of other options

Defence of legal authorization: statutory or other legal authority to trespass (example: executing warrants, reading utility
meters)
Turner v Thorne and Thorne (Ontario High Court, 1959)

Ratio Trespass resulting from innocent mistake (that is not intended) does not relieve the trespasser of liability.
Facts D (Robert Thorne) operates a business (delivery/pickup of parcels on request), the driver was George Thorne (co-D).
Delivery was to the Gas Machinery Co. (GMC). The entry to the GMC was reached by a passageway between two
houses. The D inferred incorrectly on the place of delivery, and accidently delivered to P’s property. The D placed the
delivered packages in the P’s garage, as nobody was home. P returned home later that day and tripped over the
package, suffering serious injuries.
Issue Is the trespasser liable for damages despite being unaware of the intrusion?
Result Trespasser liable. Damages allowed.
Reason
 The trespass resulting from innocent mistake, and is not deliberate, does not relieve the trespasser of liability
 Where the complaint for trespass to land and trespasser becomes liable not only for personal injuries resulting directly
or proximately from the trespass but also for those which are indirect and consequential.
 The D owed a duty of care to the plaintiff not to trespass and place goods on the P’s premises. Further, the D owed a
duty not to place the goods in a precarious location.
Notes
 Intent to injure is not required for this tort
STRICT LIABILITY

Very bad rule for assessing liability. Courts interpret and apply strict liability very narrowly.

No obvious principle to apply, or even if there is an obvious rule to apply – it leads to unjust solution
 Difficult facts lead to bad laws

Reason why this is important

(1) need to know law
(2) remind judge that their job is actually apply law.
- There are times as a lawyer or judge to let go. No need to create laws that have no justification.

Strict Liability: liability without a finding of fault

 No intentional act or negligence or recklessness
 Canadian courts stick to strict liability, however many other countries have rejected this
 Liability is imposed on the “responsible” defendant
o Even if that person is not at fault, they are still to be blamed

Plaintiff required to prove:

1) that harm or loss occurred
2) the defendant is responsible for the harm or loss

Strict liability torts (no longer apply)

 Scienter action: strict liability for damage caused by animals that the owner knows to be dangerous (eg. Keeping tigers
in your yard)
 Cattle trespass: owner of cattle is strictly liable for damage caused by the escape of the cattle onto land possessed by
the plaintiff

Escape of something that is likely to cause mischief

 Requirement of “mischief” rendered somewhat superfluous by “non-natural use” doctrine
 Requirement of “escape” still essential to liability

Rule for Rylands v Fletcher:

 D found liable without fault (intention, negligence) if:
o Accumulates on her land something that is likely to do mischief if it escapes
o Ormakes non-natural use of land (special use OR use that poses increased danger OR is of no general benefit
to community)
o Thing likely to do mischief escapes OR non-natural use results in escape
o Escaped thing causes harm or loss to plaintiff

DEFENCES (TECHNICAL)
Blackburn J: “Defendant can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps
that the escape was the consequence of vis major, or the act of God.”
1) Plaintiff’s default: fault of the plaintiff
2) Vis major  (force majeure) irresistible urge – superior force beyond defendant’s control
3) Act of God  “interference in the course of nature so unexpected that any consequence arising from it (cannot) the
foundation for a successful legal action.”
o Similar to vis major. Ogbogu: ABANDON Act of God

Rylands v Fletcher (1865, England)

Ratio A person who brings onto her land and collects and keeps there, anything that will not naturally be there, and which is
likely to do mischief if it escapes, liable for all damage which is the natural consequence of the escape.
You collect and keep dangerous things at your own peril.
Facts Fletcher was working coal mines. Rylands (and Horrocks) owned a mill near the land under which Fletcher’s mines
were being worked. Rylands constructed a reservoir in order to supply water to their mill (employed engineers and
contractors). No negligence on behalf of D, contractors encountered old shafts while building the reservoir and found
that reasonable care was not used to reseal the old mine shafts. Contractors continued with reservoir work anyways.
One of the old shafts gave way and the water in the reservoir and flooded Fletcher’s workings.
Issue What is the obligation on a person who lawfully brings on his land something which (though harmless in nature) will
naturally do mischief if it escapes out of his land?
Result Rylands held liable for strict liability.
Reason
First Ruling:
Fletcher has the right to be free from foreign water. Rylands had no right to pour/send water on Fletcher. There is no
difference that Rylands did so unwittingly.
No negligence, no trespass, no vicarious liability, no nuisance – no liability found

Second Ruling (Exchequer Chamber, Blackburn J):

True rule of law: the person who brings on his lands and collects and keeps anything likely to do mischief if it escapes,
must keep it in his peril. IF that person does not, they are answerable for all the damage which is the natural
consequence of its escape.
No liability found…
Ogbogu: “Let’s find a tort”

Third Ruling (House of Lords):

If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage – he is
responsible, however careful he may have been.
Non-natural use requirement. (No strict liability for natural occurrences – natural run-off from rain water)

Notes
 THIS IS A BAD LAW
 Subsumed strict liability torts
 It DOES NOT MATTER that the escape and consequent loss was not initiated by defendant’s intentional or negligent
act.
 Non-natural, cause mischief/harm if it escapes, even if escape is not your fault
 Defendant “is responsible, however careful he may have been, and whatever precautions he may have taken to prevent
damage.”
 Rule = BRING onto land. If something existed on land prior to purchase – would not be held liable for strict liability

Richards v Lothian (1913, PC)

Facts P operated a business on second floor of building owned by the defendant. An unknown person maliciously plugged
the sinks in the fourth-floor bathroom and turned on all taps, resulting in flood. Damaged P’s property
Issue Does strict liability apply in this circumstance?
What is the definition of “non-natural use”?
Result Appeal allowed. No strict liability.
Reason
 No liability – Rule in Rylands v Fletcher does not apply.
 No “non-natural” use of land  “provision of water supply to various parts of the house is.. reasonable.. and
necessary”
 Defendant, by having water supply, is “using… premises in an ordinary and proper manner”
 It would be unreasonable to hold him responsible in the circumstances for the malicious acts of another
Notes
 Redefined “non-natural” use – use that is special, posing “increased danger”, and of no general benefit to the
community.
 Sympathetic plaintiff in this circumstance
 Most consistently applied factor in interpreting “non-natural use” is the creation of increased danger.

Read v J Lyons & Co Ltd (1947, HL)

Facts P worked in defendant’s munitions factory during WW2. A highly explosive shell detonated, causing injuries to
plaintiff.
Reason
 Accident – plaintiff could not prove negligence
 Trial court applied Rylands v Fletcher and found for plaintiff on grounds that the defendant was engaged in “ultra-
hazardous activity” and were under strict liability to take successful care to avoid causing harm
 CofA reversed the decision, stating that there was no “escape” = preventing a thing which may inflict mischief from
escaping from the area which the defendant occupies or controls.

House of Lords
 Rylands v Fletcher does not apply
 Two prerequisites of the doctrine of Rylands v Fletcher: there must be the escape of something from one man’s close to
another man’s close. That which escapes must also have been brought on the land from which it escapes in
consequence of some non-natural use of that land. Neither exist in this case.

DEFAMATION

Element 1:
Communication that reduces the esteem or respect to which the plaintiff is held by others in the community

“A defamatory statement is one that has a tendency to lower the reputation of the person to whom it refers in the estimation of
right-thinking members of society” Awan v Levant

 Largely objective test

 A reasonable person would believe that there is a tendency to lower someone’s reputation
 All that matters is that it has a tendency to (CAN) lower someone’s reputation. Not that it HAS lowered someone’s
reputation

“..cause the plaintiff to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem”
 Something that would cause people to lose respect for him or her

Proof of defamation:
 Proof of ACTUAL loss of esteem NOT required
 Objective test: Did the statement lower the esteem or respect for the P in the minds of “right-thinking members of
society?”
 It is up to the court to infer that the statement would or would not lower the esteem or respect for the P
 Proof is not necessary, it is SUFFICIENT

Strict Liability Tort

 It does not matter that D did not intend to defame P
 Or that reasonable care was taken to ascertain the truth of the statement
 Subjective feelings about the accused feelings are completely irrelevant
 Any communication can be defamatory

Historically, used to be two types of defamation torts: libel (written) and slander (spoken)
- Libel: viewed as more serious (permanence, greater likelihood it was premeditated, capacity for wider dissemintaiton)
o At common law, libel is actionable per se, but slander requires pecuniary loss (special damages)

Defamation and social attitudes

 Is it defamatory to allege that a member of a golf club blew the whistle on illegal gambling activities at the club?
o Yes – it CAN have a tendency to lower their reputation. Illegal activities can objectively lower one’s
reputation
 “X is a sick son of a bitch.”
o Spencer J: Defamatory because can convey impression that plaintiff is “mentally-ill, unstable or unbalance…
perverted, unwholesome or morally corrupt… unfit to hold public office or to practise his profession as a
barrister and solicitor”
Element 2:
- Must reasonably understood as referring to the plaintiff
o Must identify plaintiff in some way – by name, description or context.
- Can you defame a group?
o The more specific the group, the higher the chances
o If there is enough to identify the plaintiff in some way, it could be sufficient for a claim
Element 3:
- P must demonstrate that the defamatory statement was published to a third party
o Or that a third party heard it

Three elements to the tort of defamation (P must prove all three):

(1) the words complained of are defamatory (lower P’s reputation in the eyes of reasonable members of society);
(2) the words complained of refer to the plaintiff;
(3) the words complained of were published to a third person

(2) and (3) are relatively easy to establish. Difficult to assess whether the statement can lower reputation

Onus then shifts to defendant to establish a defence

Test (Element 1):

Would the words tend to lower the P in the estimation of right-thinking members of society generally?

Defences
Justification, Absolute privilege, Qualified privilege, Fair comment (on a matter of public interest), Consent, Apology and
retraction

Not a defence:
- D’s reputation (as troublemaker, pot stirrer, controversial person, “shock jock”)
- A defamatory statement does not lose its defamatory character simply “because of the known characteristics of the
speaker”
- Or the defendant’s reputation

Example: John was described by his colleagues as a “petty thief”… Defence will succeed if prove on truth of words “petty
thief”

Justification - Complete defence

- It is not defamatory if it is substantially true
- Practically, even if it is justified defamation, it is usually not worth the time going through
cumbersome legal procedure

Consent - Complete defence

- Unusual defence – usually arises where plaintiff seeks to refute rumours or allegations
about her
- A broadcast of the refutation is not actionable

Apology and - Partial defence

retraction - Operates to mitigate damages
- Statutorily adopted through Canada – applies to media

Absolute privilege
- Defence provides COMPLETE IMMUNITY from defamation, even if statement is
malicious
- Complex and difficult to establish
- Defence based on overriding public interest in promoting full and frank communication
without threat of lawsuit
- Focus is not on who speaker is, but on the occasion where impugned communication is
made.. Nobody consistently carries around absolute privilege – situation based
 - Is it an occasion where it is necessary, in the public interest, to speak candidly and
without inhibition?

Qualified privilege
- Defence provides COMPLETE IMMUNITY from defamation, except for malicious
statements
- “… can be defeated in the dominant motive for publishing the defamatory statement is
actual or express malice.”
- No list of clear, predictable occasions/communications
- Courts look for compelling public policy reason to permit honest but defamatory
statements
- Applies to occasions where the maker of the statement has an ‘interest or duty, legal,
social or moral to make it’; and the recipient has a “corresponding interest or duty to
receive it”
- Courts look for public utility / social desirability
- EX: reference letter, communication from parent to adult child about conduct of intended
spouse
- Qualified privilege defence not available to media except if fair, accurate and non-
malicious report of judicial or quasi-judicial proceedings

Fair Comment Defendant must establish that (PROVE ALL ITEMS):

- (1) Defamatory statement is based on true facts
- (2) Though based on fact, the statement is recognizable as a comment or opinion by the
ordinary reader or listener
- (3) The comment is on a matter of public interest
- (4) The comment is an honest expression of the maker’s opinion
- (4a) Statement was not made maliciously
- Fair comment does not apply to factual statements  a comment in fact should turn to
justification. Fair comment applies on an assertion of opinion.

**Honest belief requirement:

- Objective test (RP test)
- Does not matter that D subjectively believes comment is honest held
- Test is whether anyone, however opinionated or prejudiced, could honestly express the
defamatory comment, on the proven facts
- Defence fails if P proves that the D was motivated by express malice in making statement.

What type of occasions are protected by the doctrine of absolute privilege?

- Legislative proceedings, including legislative committee proceedings
- Documents submitted to court to initiate proceedings, etc.
- Judicial or quasi-judicial proceedings, including complaints by which such proceedings are initiated
- Solicitor-client communications
- Communications between carbinet ministers and high-level civil servants
- Communications between spouses
- Media reports? – Sec 10 of Defamation Act:
o YES – only to “fair and accurate reports” published in newspapers or by broadcast
o Open legislative or legislative committee proceedings
o Meetings of commissioners, boards, local authorities constituted by law
o PUBLICATION WAS NOT MADE MALICIOUSLY (similar to qualified privilege, but distinct – statutory
defence, not common law defence)
o Defence will not apply if the D fails, on request by P, to publish a “reasonable letter or statement of
explanation or contradiction.” D has to give P a chance to publish this letter.

Malice?
- Spite, ill-will, indirect motive, ulterior purpose
- Intentional or reckless regard of the truth
- Can be proved by intrinsic or extrinsic evidence

Responsible publication (communication) on matters of public interest (Grant v Torstar Corp)

 - Modification of the law of defamation to provide greater protection for “factual statements published in the public
interest”
o Journalist hears about a story, fact checks, acts responsibly – but why no defence?? Courts will be sympathetic
- “…allow publishers to escape liability if they can establish that they acted responsibly in attempting to verify the
information on a matter of public interest”
o Law of defamation is supposed to strike a balance between maintenance of reputation and free speech
TEST:
- Is the ENTIRE publication on a matter of public interest?
- Was the publisher diligent in trying to verify the allegation, having regard to:
o Seriousness of the allegation
o Public importance of the matter
o Urgency of the matter
o Status and reliability of the source
o Whether the P’s side of the story was sought and reported accurately
o Whether the inclusion of the defamatory statement was justifiable
o Whether the defamatory statement’s public interest lies in the fact that it was made rather than its truth
o Any other relevant circumstances
Globe & Mail v Boland (SCC, 1960)

- Qualified privilege: does not apply to media/press communications

- Weight of judicial authority against extending defence to media / press communications
- Contrary to “common convenience and welfare of society” as plaintiff risks loss of reputation if malice cannot be
proved
- P do not have the resources to establish malice  risk of loss of reputation is so high, the defence cannot apply
- Defence also reject in Banks v Globe & Mail (SCC, 1961)

Defamation Act, RSA 2000

Sec. 1: Defamation means libel or slander

Sec 2(2): When defamation is proved, damage shall be presumed
Some jurisdictions have labeled TV communication as libel

Presumption of damage: An action lies for defamation when defamation is proved, damage shall be PRESUMED.

Plaintiff may allege that the matter

Apology in mitigation of damages: if the D has pleaded denial of the alleged defamation, D has suffered judgment by default,
or judgment has been given against the defendant on motion of judgment on the pleadings:
 D may give in evidence to mitigate damages that D made or offered a written apology to P for defamation

Defence: Fair comment – if D published an opinion expressed by another person, other than an employee or agent of the D, a
defence of fair comment shall not fail by reason only that the D did not hold that opinion.
 Defence of fair comment is not available to a D if it is proed the D acted maliciously.

Defence: Privileged publications: Fair and accurate report published by a newspaper or broadcast of public meetings,
proceedings (HofC, Senate, etc.), commissioner meetings, etc., is PRIVILEGED, unless it is proved that the publication was
made maliciously

Notice of intention: no action lies unless the plaintiff has given intention to bring an action for:
 Within 3 months after the publication of the defamatory matter has come to P’s notice or knowedge
 Daily newspaper = 7 days’ notice
 Any other newspaper = 14 days’ notice

Mitigating damages
 Defamatory matter was reported or broadcasted without malice or without gross negligence
 Full and fair retraction, apology, before commencement of the action
 Broadcast the retraction and apology from the broadcasting station for defamatory matter on at least 2 occasions on
different at the same time of day as the alleged defamatory matter

Special damages
 Defamatory matter was published in good faith
 Material was of benefit to the public
 Did not impute to the P the commission of a criminal offence
 Mistake or misapprehension of the facts
 Retraction and full apology
Awan v Levant (2014 Ontario Superior Court)

Facts Action challenges nine publications by the defendant on his blog. These blog posts generally relate to the events
leading up to and including a hearing of the British Columbia Human Rights Tribunal in 2008. The plaintiff claims that
the words complained of in the nine blog posts are false and defamatory of him. Although other defences were also
pleaded, the defendant relied mainly on the defence of fair comment, and to a limited degree the defences of
justification (i.e., truth) and qualified privilege. The defendant also takes the position that due to his reputation as an
outspoken provocateur and troublemaker, none of what he said would be understood as defamatory in any event.

Awan, a law student at the time, alleged a book excerpt published in a magazine was Islamophobic. Awan testified to
this affect at a British Columbia Human Rights Tribunal in June 2008. Levant is a conservative blogger on hate speech
in Canada who wrote about Awan’s testimony on his blog. Levant targeted Awan because of Awan’s connection to the
Canadian Islamic Congress’ President, against whom Levant felt ill-will. In nine different blog posts, Awan claimed
that Levant’s statements were defamatory and false. Levant published these blog posts between 2008 and 2010, and the
posts have remained on Levant’s blog ever since, with some later alterations by Levant. Titles for Levant’s relevant
blog posts included “Khurrum Awan is a serial liar” and “Awan the liar, part 2.” Though Awan had considered a
defamation suit in 2008, he waited until 2009 after Levant posted “Awan the liar, part 8,”

Issue 1) Does being a “shock jock” show that the general public would not take his words seriously?
2) Did the impugned words have a tendency to lower the plaintiff’s reputation in the eyes of a reasonable person?

Result Held with costs for P – D take down defamatory words from blog. If D wishes to only remove part of the posts – D and
P shall try to agree on what should be moved. If not, D must submit proposed approach.
Reason Levant’s blog posts all contained language which was considered defamatory and would lower Awan’s
reputation in the eyes of “ordinary right-thinking members of society.” The blog posts also had a number of
factual inaccuracies. Awan defended himself arguing that his special reputation would stop his readers from taking
what he said at face value (WIC Radio defence). The court decided to use the ordinary meaning of the words, not taking
into account the D’s special characteristics. Though the Court acknowledge similarities between this case and WIC
Radio, it agreed with the majority in that case that plainly defamatory statements were not neutralized because of a
“known characteristic of the speaker.”
Levant relied on the defenses of justification, fair comment, and qualified privilege. The latter two could be defeated by
malice, for which a plaintiff has the burden. Some posts were protected by fair comment. Extrinsic evidence showed
that Levant had malice towards Dr. Elmsary, which he redirected at Awan. Intrinsic evidence in some of the blog posts
also demonstrated malice, which was further indicated by the numerous errors and Levant’s decision to do minimal or
no fact-checking.

Justification and fair comment:

o “a little bit of taqqiya that Awan et al. has told the press”
o Levant claimed words were comment, not fact
o Not required that he prove “intent to deceive.”
o D not able to prove that P made statements at hearing with intent to deceive
o An incorrect statement is not necessarily a lie – the best you can say is that “you made incorrect statements”
because Awan made incorrect statements
o Defence of justification fails
o Fair comment also fails because words not comment but facts

Qualified Privilege
o P argued does not apply to media
o Judge cites exception: fair and accurate report of judicial or quasi-judicial proceedings (Hill).
 Subject only to malice
o Even though these exceptions apply, it is defeated by the clear malice shown by Awan

Notes
Obiter: “…some speech may be so widely known to be false or unbelievable that its otherwise defamatory meaning is
lost”
Hay v Platinum Equities (2012 ABQB)

Facts Hay was a chartered accountant. Platinum is a commercial real estate syndication corporation. Platinum was attempting
to close a property purchase and needed quick financing to close the deal. Platinum looked to obtain financing through
a bank (RBC) and needed RERs (Review Engagement Reports) to be considered for financing. An employee at
Platinum looked to obtain RERs through an outside accounting firm. The bank received the RERs and labelled them as
fraudulent. The bank later called Hay inquiring about the RERs issued, and Hay stated that he had nothing to do with
them. Hay called the ICAA (Institute of Chartered Accounts of Alberta) to report matter. Hay wrote a demand letter to
Platinum, later issued their statement of claim and served Platinum. Platinum wrote to ICAA asking it to investigate the
matter (quasi-judicial proceedings). Platinum filed official defence as well as a counterclaim against Hays alleging
Hays had conspired to injure Platinum.
Issue Was Hay defamed as a result of the submission of the RERs to the bank?
Were the Hays defamed as a result of Platinum’s letter to the ICAA?
Result No defamation
Reason Second and third elements of a tort have been proved: P argues they were defamed by innuendo. The defamation is
established because the RERs were not filed in accordance with general accepted accounting principles (GAAP), and
this implicates that the plaintiffs were dishonest or incompetent as chartered accountants. Third element not proved as
the financial statements attached to the RERs did not contain evidence that they were not in accordance with the
GAAP.

Letter is not found to be defamatory:

The plaintiff had already reported the issue to the ICAA,
This was a serious matter which Platinum was justified in investigating
And the words themselves do not lower the reputation of the plaintiff in the eyes of reasonable persons
Further, the letter is protected by the doctrine of privilege.
Defence did not statue absolute privilege as a defence, however it is implied in their factum.
Absolute privilege applies to the letter of complaint, as it was addressed to the ICAA, which is governed by the
Regulated Accounting Profession Act. (quasi-judicial proceedings) The right is reserved that any person can
make a written complaint such that to “protect the interests of the public.”
The letter is protected by qualified privilege because:
The serious allegation of fraudulent RERs made for a duty to bring the matter to the attention of the ICAA
Notes

Vander Zalm v Times Publishers (BCCA, 1980)

Facts Plaintiff was the 28th Premier of BC. Held several Cabinet portfolios in the 70s and 80s, including Minister of Human
Resources (at time of dispute). Newspaper published political cartoon depicting Vander Zalm gleefully picking the
wings off flies. Cartoon rendered by Bob Bierman to depict P’s attitude and views regarding welfare recipients. P
claimed cartoon depicted him as a “person of cruel and sadistic nature who enjoys inflicting suffering and torture on
helpless human beings..”
P openly disliked welfare aid
Issue Is the fair comment defence applicable in this scenario?
Result Trial judge awarded damages of $3500. BCCA reversed – fair comment defence applies
Reason
- D pleaded fair comment
- Trial judge reasoning: facts pleaded as basis for complaint could not fairly lead to imputation arising from cartoon.
“Drawing him picking wings off a fly is too far.” Should be using justification defence.

- BCCA reversed – FAIR COMMENT APPLIES.. “Reasonableness not required, just a factual basis.”
o (1) Defamatory statement is based on fact and is recognizable as comment
o (2) P’s statement “sufficiently publicized” as to enable ordinary reader to recognize cartoon as a commentary
on the statements
o (3) Comment or opinion is on a matter of public interest
 Matter of considerable public interest – concerned with P in his public capacity
o (4)The comment is “an honest expression of the real view of the person making the comment”
 Cartoon represents the “honest opinion” of Mr. Bierman. No evidence of malice or ill will.
WIC Radio v Simpson (SCC, 2008)

Facts One of the As is a controversial radio talk show host. Involved in a spat with R on the purpose of introducing materials
dealing with homosexuality into public school curriculum. A compared R to Hitler, KKK, etc. (imputation of violent
conduct or condoning violent conduct). R brought defamation suit; appellant pleaded fair comment.
Issue 1) Were the defamatory comments based on fact?
2) Does it matter that the A did not testify that he had an honest belief in the innuendo or associated imputation?
Result
Reason
- Trial judge: accepted defence
- CofA: reversed on grounds that there was “no evidentiary foundation” for imputation of violence / condoning violence
o There needs to be a connection between factual basis and defamatory statement / imputation of violence
o Held that A did not testify that he had honest belief that R would condone violence

- SCC (Binnie J for Majority):

o Issue 1:
 Yes – the general facts of the dispute between the parties was well-known to the listening audience
 The facts need not relate specifically or reasonably to the alleged imputation – it is enough if it
provides a basis for the defamatory statement
 You don’t have to have an imputation, or the defamatory statement has to be on completely factual
basis
 As long as there is a link (some basis) of fact
o Issue 2:
 No, does not matter – the test is whether anyone could honestly express the defamatory statement on
proven facts

Grant v Torstar Corp

Facts Grant wanted to build a 9-hole golf course on his lakefront estate. To do so, he needed to purchase adjacent Crown land
and get government approval. Opposition from local residents over environmental concerns. At public meeting,
residents expressed concern about transparency of government approval process. Toronto Star published article by
Report Bill Schiller follow tipoff by a individual who attended the meeting.
- **Fill in rest
Issue
Result
Reason
- Trial judge rejected argument qualified privilege :
o Not public interest (too local)
o Tone was negative (expressed malice)
o Justification rejected – there was no way to PROVE it was a done deal
o Fair comment rejected – malice
- CofA reversed – holding that responsible journalism defence applies
o Public interest is present (does not matter if it is narrow)
o Trial judge used a test that was rejected in WIC Radio (trial took place prior to WIC decision)
o Also, defamatory statement (“done deal”) was not made by Schiller but by Clark
- SCC – sidestepped both points and instead recognized a NEW defence: responsible publication
o Two factors supporting rationale:
 Defence based on Charter-guaranteed freedom of expression
 The need to avoid chilling effect on responsible reporting of facts
- Application of test below:
o Defamatory statement “done deal” could be viewed as opinion or fact – if opinion: fair comment applies
 Opinion: idiomatic expression of an opinion about the likelihood of government approval
 Could be factual statement that government approval has been received formally behind the doors:
triggers responsible publication defence
o
Notes
- Responsible publication test:
1. Was the publication on a matter of public interest?
a. Matter for judge to decide – primarily a question of law
i. Based on argument on what you see as “public interest”
b. Judge must consider the publication as a WHOLE, not just the defamatory statement
c. Not synonymous with what interests the public
i. Not TMZ, gossip
ii. Court gives two indications for test or standard for public interest
d. Public interest could be:
i. Invites public attention or concern because it affects the welfare of citizens and is associated with
“considerable public notoriety or controversy”
ii. A matter for which a segment of the public has a genuine stake in knowing about – there is a
democratic interest in wide-ranging public debate
2. Was publication of the defamatory communication (impugned defamatory statement) responsible?
a. Factors are “non-exhaustive but illustrative guides”
VICARIOUS LIABILITY

- Proof of fault not required

- Not fault-based tort

Vicarious: “performed, exercised, received or suffered in place of another”

- Defendant is innocent – but liability is imposed on that defendant “just because”
- Legal artefact – does not make much sense in the light of tort law

The Paradigm: An employer is vicariously liable for the torts of his/her employee, committed in the course of that employee’s
employment
- Classic rule
- Only form of VL courts have recognized thus far… does not mean it cannot be expanded to other contexts
- Do not argue for another form of vicarious liability (exam)
o Expanding categories is not what courts want to do
- Only VL tort supported by doctrine is employment context.

Three components of the doctrine:

1) An individual commits a tort
2) That individual is an employee
3) The tort is committed in the course of that individual’s employment

Plaintiff Defendant “Deep pockets” theory of liability: Assured means for

Tortfeasor getting compensation
Will traditionally sue both Employee Defendant
employee and employer Vicarious liability
Employer

Strict or fault-based liability?

- No amount of reasonable care on employer’s part will serve as defence
o Liability still imposed regardless of any actions imposed by employer to avoid liability
- Lack of proper training is basis for direct, not vicarious liability
o If there is fault, look to other torts (negligence)
- Foundation of action is a tort – the doctrine broadens liability to include innocent defendant

Employee, not independent contractor

- Vicarious liability applies to torts committed by employees, not independent contractors
- How then do we distinguish between employees and independent contractors??

The Control Test (Yewens v Noakes – 1880 QB)

- Did the employer tell the tortfeasor what to do and how to do it?
o (Does the employer control all aspects of the job/service??)
o Test has been modified and refined to account for contemporary employment arrangements
o Affirmed by SCC as showing essential characteristic of employment relationship in 67112 Ontario Ltd v
Sagaz Industries Canada Inc (2001)
 Non-exhaustive list of factors  other circumstances may yield additional factors to be considered
o SCC also stressed need to account for “other factors”
- Example: Prof at university control their aspect of work and therefore, although told to teach 12 credits a year, would
not be able to sue employer for VL
- Will NOT WORK FOR MOST MODERN PROFESSIONAL RELATIONSHIPS
- This is not the only test – primary test

Control Test - OTHER FACTORS (Montreal v Montreal Locomotive Works Ltd – PC 1947)
- Lord Wright’s FOUR FACTORS:
 o 1) Control
o 2) Ownership of the tools
o 3) Chance of profit
o 4) Risk of loss
- Professor – more factors count in FAVOUR of the professor being an employee. NOT all elements proven necessary
o Safely conclude employee

Lord Denning’s Tests (Stevenson Jordan & Harrison Ltd v MacDonald, CA 1952)
1. Organization Test:
a. Is the tortfeasor part of the business?
2. Integration Test:
a. Is the tortfeasor’s work integral to the business?

- ALWAYS good to go through all of these tests to reach a conclusion.

Can an employer who has been found to be vicariously liable seek indemnity against the employee tortfeasor?
- Generally, yes.. most employers do not exercise this right.. it is easier and faster to fire the employee
- Lister v Romford Ice and Cold Storage (1957, HL)  YES
o Despite not paying the losses (covered by insurer) can the employer still sue employee?
o Employer claimed right of indemnity was an implied term of the contract with negligent employee (truck
driver)
o Notwithstanding legal obligation to maintain liability insurance
 “An action for damages, whether the tort or breach of contract, has, even if rarely used, for centuries
been available to the master”
o To preclude indemnity would promote “irresponsibility” among employees
o Rationale: holding employees responsible  grant employers right to recover from negligent employees

- In practice employers and their insurers rarely seek to enforce this right

Is the employee liable for damages beyond what employer has undertaken to cover / beyond insured amount?

London Drugs Ltd v Kuehne & Nagle Int’l Ltd (1992 SCC)

Facts London Drugs stored a transformer in D/R’s warehouse. D/R’s employees negligently damaged the transformer,
causing $33000 worth of damages. Contract between London Drugs and D/R limited latter’s liability to $40.
Issue Whether the D’s employees were liable for damages beyond the amount stated in the contractual limitation clause
($40)?
Result NO – plaintiff cannot cover beyond
Reason
1) Dube, Spoinka, Cory and Iacobucci: NO – employees covered by limitation clause
o Exception to the doctrine of privity of contract
 Prevents persons who are not privy to the contract to exercise rights over the contract
o Contract was for the benefit of employer and employees
2) McLachlin J: Theory of “voluntary assumption of risk” permits an employee sued in tort to rely on a term of
limitation in his employer’s contract
o P voluntarily assumed the risk – DEFENCE TO NEGLIGENCE
 Extends the thinking to this situation
 By agreeing to the $40 recovery, the risk was voluntarily assumed
 Ubaka: destruction of doctrine as it is the voluntary of assumption of negligence

3) LaForest J: No liability for loss at all – elimination of employee “loss-bearing” more consistent with vicarious
liability doctrine
o Employees are not responsible.
o Person’s with deep pockets should bear the risk – it is vicarious liability, take it or leave it
FILL IN CLASS SIDES + SUPPLEMENTAL NOTES

Lister v Hesley Hall (2001, HL)

VICARIOUS LIABILITY CLAIMS FOR SEXUAL ASSAULT/ABUSE OF INDIGENOUS CLAIMANTS

Deepest pockets is the government of Canada

- Any time gov’t is on the other side, claims are tough to succeed

Actions that are statute barred – there is an issue of exceeding the statute of limitations
- Claims are no longer actionable
- Serves the perpetrators and government

CONTEXT:
- Abuse, including sexual assault, in residential schools and foster homes
- Schools operated by the gov’t of Canada alone or in partnership with various churches
- Perpetrators “judgment-proof” (financial insolvent or otherwise unable to satisfy judgment) at the time of trial
o Claimants were either dead or insolvent

Influence of Bazley
- Courts are able to apply “enterprise risk” and “strong connection” tests
- Significant connection between the risk created or enhanced by the employer’s enterprise and the employee’s
wrongdoing
- Serves the policy goals of providing an adequate and just remedy, and deterrence
o Can come up with policy arguments that “we are cognisant of our history and want to amend”
- Much like Joacbi, SCC has struggled with applying Bazley to abuse by foster parents
o Two issues with cases of foster parents
 Are they employees of the gov’t?
 We can recognize another paradigm – yes the employee paradigm is still relevant
 How do we apply the strong connection?

Foster Care Cases

- Reliance on classic basis for VL and test for establishing an employment relationship a bar to recovery in some cases
(eg. KLB)
- Other cases suggest that the employer’s responsibility derives from tasks specifically assigned to perpetrator (and not
just from the fact of employment)

Blackwater V Plint

Facts Appellants are indigenous claimants who, as children, were sexually assaulted and abused in residential school in BC.
Respondents – gov’t of Canada and the United Church – operated the residential school. Assaults and abuse commited
by the employee of the residential school. Claimants alleged VL against the church and the gov’t.
o Negligence was alleged, however, challenging to establish
Issue VL present?
Result
Reason
Trial judge:
o Found for P for all claims that were not statute-barred (sexual assault)
 First step of unfairness in legal system
o Liability apportioned 75% (Canada) and 25% (United Church)
CofA:
o Exempted church from liability on doctrine of charitable immunity
 Doctrine no longer applies according to SCC
 o Held that Canada was MORE RESPONSIBLE and in a better position to compensate
SCC:
o Appealed on the grounds of the exclusion of statute-barred claims
o Canada appealed application of doctrine of charitable immunity to case
o REJECTED application of charitable immunity and upheld trial judge’s findings on VL
 McLachlin’s ruling in Bazley is used and was constructed due to its resiliency
o Apply Bazley: “there is a significant connection between the conduct authorized by the employer or
controlling agent and the wrong”
 Employer or operator of the enterprise “created or enhanced the risk of the wrongful conduct”
 It does not matter that the wrongful act “may be contrary to its desires”
 “the fact that wrongful acts may occur is a cost of business”
o Factors to consider – restatement of Bazley
 INSERT factors
o Degree of control over church by Canada does NOT negate conclusion that church had sufficient control to
establish employment relationship
 Church played significant role in running school; hired, fired and supervised employees for Canada
and its OWN ends
o Canada had an important role, but the Church was NOT a mere agent
o Argument by D: Can two D’s be held VL?
 YES – where there is a partnership
 “No compelling jurisprudential reason… to justify limiting VL to only one employer”
 CA wrong to rely on Bazley to conclude that charitable immunity applies
 Reasoned incorrectly that Bazley test (strong connection b/w enterprise risk and harm)
required imposing liability on party more responsible and best able to bear the loss
 Both Church and gov’t held VL for non-statute-barred claims
 75%/25% apportionment reinstated

K.L.B v British Columbia (2003)

Issue: Is the employment relationship essential to establish VL?

Majority opinion (delivered by McLachlin):

- Summary: The nature of a foster parent relationship is not an employment relationship. Foster parents are like
contractors. This is because foster parents act independently (no directive, social workers are not present all the time).
Therefore, we are not going to impose liability on the gov’t of Canada. This could have gone the other way if the foster
parents were acting under specific directive by the gov’t. No suffficent connection between gov’t policy and foster
parent actions.
- Relationship between gov’t and foster parents neither established nor sufficiently close for purposes of VL
o Essentially, not an employment relationship
- Was the court right to confine the analysis to employment relationships?
o Majority also reasoned that relationship b/w gov’t and foster parents was not sufficiently close
 But argued through the lens of an employment relationship
 Gov’t had strategy to re-educate through different mechanisms (foster parents and churches)
 Majority applied tests for determining whether an employment relationship exists, and associated
policy rationales
 Foster parents “discharge [their goals] in a highly independent manner, free from gov’t control…
provide care in their own homes…. Use their own equipment…. They have complete control over the
organization and management of their household…. The gov’t does not supervise or interfere”
 Ubaka thinks this can be challenged.
- A second basis for liability is where the tortfeasor’s wrongdoing is “sufficiently connected to the tortfeasor’s assigned
tasks”
o This is a partial softening of the position
o Such that it can be viewed as “materialization of the risks created by the D’s enterprise”
 Do not know what to make of this…
 If this is the case, this wording can place liability on a contractor… “if the enterprise risk exists, we
don’t need an employment relationship”????
- Sum up:
o The tortfeasor (foster parents), like independent contractors, were acting on their own behalf.
 o It is not fair to impose liability in the circumstances
o “given the independence of the foster parents, liability is unlikely to result in heighted deterrence”
 Ubaka does not find this very compelling
o Gov’t cannot supervise when social workers absent
Dissent opinion (Arbour)
- Summary: Employment relationship is just one context of VL. Because the situation demands it, it is warranted to
create a new form of VL. Outcome is the same, but reasoning diverges. VL is supposed to provide compensation in
circumstances. Government is the ward and offloading responsibility to the parents. Policy goals of fair and just
compensation and terrence exist in this case (Ogbogu = correct).
- VL applies but no liability because underlying torts are statute-barred
- Agrees with majority’s characterization of VL but disagrees on application
- Holds that tortfeasor was acting on behalf of gov’t
- “Foster parents do in fact on behalf of the gov’t when they care for foster parent”
o Ubaka likes because it simplifies
- Policy goals – fair and just compensation and deterrence – also apply
o Ubaka: good, not confusing, not a slave to employment doctrine
 If VL exists, lets go straight through the employment relationship
- It is fair to compensate where the risks inherent in the “faultless person’s” enterprise materializes and causes
o Ubaka wishes this is the law
- VL “encourages employers and others who may be subject to it to take extra measures beyond what is required to avoid
negligence”
o Others may do things that create a VL.
o Starting point for how Arbour J started the analysis
- Although employment relationship is most common form, the categories are not closed or exhausted
- A functional inquiry is required: (use the function of a law to solve problems in new contexts)
o Tests for establishing if there is an employment relationship are not determinative in all cases.
- “This case marks the first time the court has been called upon to consider the relevant factors for determining whether
foster parents are acting on behalf of the gov’t for VL purposes… the factors relevat to this inquiry will not be the same
as the factors… relevant to [establishing an employment relationship]”
o Ogbogu: this is great. Use VL to address policy goals… where necessity calls for it, we can use it.
- Most important factors in this case are control and “victim and community’s reasonable perception of who is ultimately
responsible for safety of foster children”
o Gov’t had sufficient control over foster parent’s activities for vicarious liability purposes
o Question is not extent of gov’t intervention in day to day affairs of foster parents
o Rather, it is the extent the gov’t has the power to control the foster parents.
- The imposition of VL in these circumstances can deter harm
o This is quite clear – place responsibility on the gov’t
- Evidence shows that gov’t responds when it becomes aware of risks in foster care system by imposing rules and
restrictions
o This is a very regulated system. Gov’t will react and address if VL is found
- Gov’t has taken measures in the past to reduce risk of abuse, including mandatory standards that govern behaviour of
foster parents in detail

- Takeaway: Arbour J is right.

NEGLIGENCE

Nature of Negligence

Accidental conduct: The defendant could not have reasonably foreseen or reasonably prevented the consequences of the act
- Consequences unpredictable

Negligent conduct: The defendant should have reasonably foreseen and avoided the results of the act but did not (i.e. the
defendant was careless)
- Careless about consequences

Intentional conduct: The defendant knew, with "substantial certainty", the likely consequences of the act, or desired them
- Deliberate intent to inquire

Negligence: “failure to take proper care in doing something” (closest synonym: “Carelessness”)

About Negligence
- Most prevalent cause of action in the law of torts
- Both in terms of number of claims and attention it receives from lawyers
- Expanded in recent decades as a result flexible judicial interpretation/application of core elements

Core Elements:

1) Negligent Act - Determined by identifying the appropriate standard of care to which D should have adhered
- Standard set by law? What would a reasonable, prudent person do?
- Then, that standard of care is applied to the facts of the case to see if D adhered to it
2) Causation - Determined by showing a causal link between D’s negligent act and the P’s damage
- “On a BOP, it was a defendant’s actions among these causes that resulted in the consequence”
- Factual uncertainty – case law to help determine this
- Ask: Did the D’s negligent cause the plaintiff’s injury?
- Or is there some other cause or way to explain the injury?
3) Damage - Vital element that triggers the claim and launches the entire litigation process
- NO HARM NO FOUL

No negligence if any element is not proved

- MUST PROVE LOSS OR HARM

Control Devices (show that these things exist after meeting 3 elements)
- Important that although you have prima facie negligence – work to limit liability (fairness, justice, policy)
- 3 elements are linked to the facts – these devices have less to do with facts and more with fairness, justice, etc. to limit
scope of recovery for negligence
- Existence of three elements does not automatically translate to liability
- Courts have developed control devices to keep negligence liability within appropriate boundaries
- 1) Duty of care
- 2) Remoteness of damage

Duty of Care
- Unless D owes a duty to take reasonable care of P’s interests, harm to P cannot result in liability to D
- Looking at the reasons why courts should or should not impose a duty on a defendant
o Example: doctor owes their patient a duty of care
- We can exclude certain persons from the scope of the D’s responsibilities

Remoteness
- Similar to duty, it excludes liability for certain kinds of losses
- On the basis that they were utterly improbable consequences of D’s negligent act or responsibility
- Example: a reasonable and prude person would shovel their sidewalk during the snow season. If someone slips and
falls, they would be responsible for their negligence
 o Outrageous example with person slipping, cat, heart attach: “facutually speaking, there is a causal link between
the negligent act and consequence” “However, defendant may succeed in proving remoteness”
 Some consequences are reasonably foreseeable
 Unfair to impose liability on all of the losses

ANALYSIS (Not the only way to approach negligence problem – depending on issue)
Step 1: Does the defendant owe the P a duty of care?
Step 2: Did the D’s conduct fall below the standard of care?
Step 3: Did the D’s negligence cause the P’s injury/loss?
Step 4: Did the D’s conduct result in actual injury or damage to the P?
o Usually a right in property or bodily integrity
o Sometimes, pure economic loss – where the P is claiming lost money only
 Example: negligence when drafting a will (do not receive money as should have been set out in will)
Step 5: Was the damage reasonably foreseeable? (Remoteness)
Defence: Are there any defences that might shield the D from liability in whole or in part?

Defences
- If P establishes elements, D may still assert a defence
o Contributory negligence
o Voluntary assumption of risk
o Illegality

Contributory Negligence
- Partial defence
- “Your negligence contributed to the loss suffered
- Applies where P was also negligent
o Can also be 2 defendants
- Reduces amount of damages D is liable for

Voluntary Assumption of Risk (volenti)

- Total defence – ends the lawsuit
- Defendant asserts that the P was aware of the risk of their actions and voluntarily accepted that risk
- Accepting the physical risk and legal risk
- No negligence on part of D

Illegality
- Operated as a full defence
o But scope severely restricted by SCC
 Burglar example (getting injured while stealing): it is possible for the D to recover for personal injury,
but not lost wages
- P was engaged in illegal conduct when the negligent act occurred
- Example: trespasser getting injured on a property

FIRST ELEMENT: NEGLIGENT ACTS

- Did the D’s conduct fall below the standard of care (that the law expects)
- Generally, the standard of care required of Ds is objective, not subjective

Vaughan v Menlove (1837, CP)

Ratio Standard of care required of D is OBJECTIVE.

Facts D built haystack with chimney to prevent risk of fire. When warned of possibility of fire, said “he would chance it”.
Haystack caught fire and destroyed P’s property.
Issue Is the act negligent? Does it meet the requisite standard?
Result Appellant found liable.
Reason
- Trial court found D liable on the basis of failing to meet standard of ordinary prudence
o “Reasonable caution as a prudent man would have exercised under the circumstances”
 - On appeal, D argued his conduct should not be measured by that standard. Because, really, he is a dull boy – does not
possess “highest order of intelligence”
o Contended standard is whether he acted bona fide to the best of his own judgment
- The standard is objective. No allowances for personal quirks or idiosyncrasies
- The standard provides certainty – cannot fluctuate based on subjective judgment of each individual – a reasonable level
of conduct is expected by all
Notes
- Does the law, in fact, accommodate some allowances from the general rule?

Buckley v Smith Transport (ONCA, 1946)

Ratio Exception to the general rule: D’s who are mentally incapable of discharging the objective standard of care
should not be held liable.
Facts D’s truck hit a streetcar. P alleged that D, a corporation, was vicariously liable. At the time of accident, employee had
syphilis of the brain and was under delusion the truck was being electronically controlled by head office.
Issue Is the company vicariously liable for the actions of the employee?
Result No negligence.
Reason
- P had to prove that D’s employee was negligent
- Employee had insane delusion. Even though there is an objective standard of care, he was incapable of discharging
objective standard of care. He neither understood not was able to discharge the duty to take care because of the disease
- Negligence law penalizes D for careless actions.
- The law assumes D is capable of exercising reasonable care or discharging duty of care
o Or of understanding and controlling actions and consequences.
Notes
- How about diminished physical capacity?

Roberts v Ramsbottom (QB, 1980) [WRONG: DO NOT CITE]

Ratio
Facts D, while driving, suffered minor stroke (no previous strokes). Felt “queerness” and “impaired consciousness”. D kept
driving and had two accidents. Kept driving, had serious collision with P, damaging her car and injuring P’s daughter.
Issue: Did the D fail to meet an objective standard of care?
Result Negligence found.
Reason
- Despite impaired awareness, D had some sense of what he was doing and of his surroundings
- He clearly was able to control the car through deliberate and voluntary movements (even if inefficient)
- “One cannot accept as exculpation anything less than total loss of consciousness.”
Notes
- Is Roberts consistent with Buckley?
- Courts stated he had some sense of what he was doing (deliberate and voluntary, even if inefficient)

Mansfield v Weetabix (CA, 1998)

Ratio
Facts D’s employee had a condition that caused brain to malfunction when blood sugars were low. He did not know he had
this condition. Caused a series of accidents by driving after having little to eat.
Issue Did the D fail to meet an objective standard of care?
Result No liability. Roberts is wrong.
Reason
- Mansfield ruling: standard is that of a reasonably competent driver unaware that he is or may be suffering from
condition that impairs driving
o It does not matter that he retained some control over the driving
o Total loss of consciousness rule is wrong
- He is not liable for damage resulting from impaired consciousness caused by the condition
Notes
- If there is some mental, physical impairment that affects ability to discharge objective standard of care – could be
useful
- Note that if he KNEW of this condition then this would be a totally different case – he would have not taken care and
be found liable
o But this is not the case here
 - Don’t need total loss of conscious, just need to know if your actions were in your control or not

YOUTH

McHale v Watson (HCA 1966)

Facts Watson (age 12), after a game of “tag”, threw sharpened piece of welding rod at a post. Bounced off the post and hit
Susan McHale, a few years younger, in the eye. Susan was rendered permanently blind.
- Windeyer J: True that standard of care doctrine does not allow for the “idiosyncrasies of the particular person”. But,
childhood is not an idiosyncrasy
Issue Did the trial judge err in applying a different standard?
Was the D liable on the lowered standard?
o If he was correct to lower the standard, then did he apply this new standard correctly?
Result
Reason
- HCA:
- McTiernan ACJ: Semi-subjective duty of care.
o Childhood is not a peculiarity/idiosyncrasy
o Three levels of standards are applicable to children:
 1) babies (essentially) – manifestly incapable of perceiving risk. Incapable of negligence.
 2) young adults (essentially) – haven’t attained majority age. Nonetheless, are capable of foreseeing
risk/probable consequences of actions. Held to usual standard of care of reasonable person
 Can’t look at the child as totally subjective, thinking what children in that age group do in
these circumstances? What would a 14-yr-old in same situation with same age, IQ, experience
do?
 3) In-between group (children) – capacities to appreciate risk vary with age, intelligence and
experience. Held to standard of a child with same age, intelligence and experience. Semi-subjective as
standard accounts for intelligence and experience
- Kitto J (concurring): No room for subjectivity
o We can simply deviate from the adult standard to account for childhood
o No answer to say D is abnormally slow-witted, quick-tempered or inexperienced
o This does not mean age is irrelevant
o Can be relied on as a limitation to capacity that is not personal, but a general characteristic of stage
development
o NOT IDIOSYNCRATIC – but considers what is reasonable for a 12-year-old
o Did D do anything that a reasonable 12-year-old noy possessing and exercising foresight and care expected of
12-year olds would not have done?
 Any normal boy would have thrown the spike
 “A piece of wood and a sharp instrument have special affinity” for a 12-year-old who would not have
weighed risk of hard vs soft wood and the likelihood of the spike sticking
- Menzies J (dissent): No deviation
o Reasonable person applies – no room for variations
o RP would not have thrown dart at head weight with another standing close by
o Even on lowered standard, D still liable – not reasonable for boy to throw…
 Ogbogu disagrees
Notes
- Did Kitto J frame the issue correctly?
o True to say no 12-year-old would ask: is that post birch or pine?
o But should the boy not be expected to think: maybe I should not throw a sharpened welding rod at all?
- Example of courts giving more leeway to boys
- What happens when a minor commit something that could be a negligent act – how do we apply the general rule to
minors
o Assess minors according to their age
 As minors age, their ability to approach their actions in a reasonable prudent way grows with their age
– but courts struggle with this
o Consider age – effects standard of care
 But doesn’t mean just because you are a minor you don’t need to meet a standard of care
- How do we judge Barry’s actions? Reasonable prudent person would do?
- Trial judge said not liable – he lowered the standard b/c he is a child – made a different standard for children
- **Not precedent in Canada
R v Hill (SCC 1986)
- “The law does not attribute to individuals in the developmental stage youth the same degree of responsibility…
attributed to fully adult actors” (Wilson J in dissent)
- On the road to objectivity, standard should be “adjusted incrementally in accordance with age

McErlean v Sarel (ONCA 1987)

Facts Two teenagers were involved in trail bike accident (collision).

Issue What happens when a minor is engaged in an activity we associate with adults?
Result
Reason
- “when a child engages in… an ‘adult activity’, he or she will not be accorded special treatment”
- 1) Operating a motor vehicle is different from playing ball
o “One cannot know whether the operator of an approaching automobile is a minor or adult”
- 2) Machines are capable of high rates of speed regardless of operator and inherently dangerous in wrong hands
- 3) Where the activity is insured, the minor is protected from ruinous liability
Notes
- A minor who is carrying as an adult will be treated as an adult (act like an adult be treated like one)
- They want to protect the plaintiff and the rest of society
- Ogbogu agrees with this
- Should the law hold the person who granted the minor access responsible instead?
- Liability insurance leads courts to be even more inclined to impose liability to children
o Insurance are going to pay it out
o Cases where there is no insurance, courts may be inclined to do something different (but prof doesn’t think so)
o Child acting like an adult will be treated like an adult

STANDARD OF CARE

- Standard of care applicable in negligence cases is assessed objectively

- D is negligent if conduct does not accord with that of a reasonable or prudent person
- No allowances for low or less than average intelligence (Vaughan)

- There are exceptions to this general rule – courts sometimes accommodate or allow lowered standard

Physical/Mental Impairment
- D may be excused if acting under insane delusion and unable to appreciate risk or consequences (Buckley)
o Physical or mental incapacity = cannot have the objective standard of care

- Defendant may be excused if unable to discharge duty of care due to physical impairment
- Even if still conscious – total loss of consciousness not required (Mansfield, overruling Roberts)
- And provided D was unaware of condition that triggered the impairment (Mansfield)
o Example: if you know you have bad eye sight and drive without glasses – will successfully sue
- Physically impaired D liable if she knew or ought to have known of triggering condition AND failed to take reasonable
steps to address the condition before engaging in risky activity (Mansfield)

Youth
- For young persons (minors), age matters – adjust standard of care in accordance with age (Wilson J in Hill, Kitto J in
McHale)
- Intelligence and experience also matter (McTiernan ACJ in McHale, McEllistrum (SCC))
- No adjustment for minors engaged in adult activity (McErlean)

Fleming, Law of Torts

- 1) “Reasonable person” standard eroded over time by policy considerations and adoption of semi-subjective standards
- 2) Objective standard is necessary for general welfare of society (compensation of injured plaintiffs)
- 3) But often changed when it does not meet or hinders this objective
- 4) Cases sometimes make adjustments to reasonable person standard based upon specific factors

Adjustments Include…
 - Knowledge/Experience
o No allowances for substandard knowledge/experience
o But converse is not true
o If a person has a higher level of experience, s/he may be judged according to that experience
o A lawyer with specialized skills may be held to a higher standard than a general practitioner
 Can’t lower the standard if you are low experience/IQ, but we can raise standard if you have
more experience/IQ
Physicians
- A physician is held to the standard of the average (reasonably skilled) practitioner of the class to which she belongs
or holds herself out to belong
- These are adjustments courts have recognized over time

Beginners
- No lowered standard of care: held to standard of reasonably skilled and proficient persons in that calling
- Take on file in your first years you are treated as a competent lawyer
o Saying “I just started” is not a defence
o You will be judged according to a reasonable, prudent lawyer

Layperson engaged in expert activity

- Where a task demands expert skill, especially if public safety is implicated, a layperson undertaking the task will be
judged by the standard of the expert
- Law student acting like a lawyer – will be judged as an expert

Physical and intellectual impairments

- Physically disabled persons are often judged by standard of reasonably prudent person with same disability
- No allowances for intellectual or emotional characteristics
- If negligence is not linked to your physical disability then it does not matter

Issues with the Learned Hand test

- If cost of precautions (B) are very high, then it is not negligent to inflict harm on P
- So, okay to sacrifice the P’s wellbeing for the social (or economic good without any compensation
- Test is based on the assumption that everything is reducible to money/financial considerations

Bender, “A Lawyer’s Primer…”

- Economic analysis turns people into abstractions
- Weighed against profits or benefits to be earned from injury-causing activity – rather, no one should be hurt
- B can never be high enough to absolve D of taking precautions
- Ogbogu thinks this is too far…
- RP test is one of conscious care and concern of a reasonable neighbour under similar circumstances

Posner’s Response to Bender

- The ‘caring person’ does not really get us anywhere
- This is fair
- Most neighbours really couldn’t care less about each other
o Ogbogu agrees

Learned Hand Test

Bolton v Stone

Facts P hit and seriously injured by cricket ball. Probability of injury extremely low, but not inconceivable. Ball hit clear out
of grounds only 6 times in 30 years and landed in lane that was back entrance into row of houses.
Issue Negligent for not building a fence?
Result
Reason
- Test: D’s actions are to be assessed on the reasonable person standard
o But what does it mean to act reasonably in the context of this case?
o That D must have considered the cost of avoidance (B) and expected cost of harm (PL)?
 - Lord Reid: D not liable
o We must draw a distinction between unforeseeable risk and foreseeable real risk
o Unforeseeable risk arises from events so bizarre and freakish no one could reasonably foresee the outcome
 If the probability of this is so low that no reasonable person would have ever expected this to happen –
then you should only consider that probability.
o Foreseeable risk is risk one can foresee
o To impose a foreseeable risk on another can be a breach of the standard of care
- P’s argument: But, once an unforeseeable risk occurs once, it is now foreseeable
o Response: refine to account for degree of risk:
 Foreseeable but small or infinitesimal risk; versus
 Foreseeable and substantial risk
- The law does not seek to protect people from all risks
- We live in crowded society, and even the most careful person creates risk
- Ds are only required to refrain from creating foreseeable substantial risk
o “I do not think that a reasonable man, considering the matter from the point of safety, would or should
disregard any risk unless it is extremely small”
- D must also consider seriousness of the consequences (Sounds like L)

Notes
- But where is B (cost of remedial measures)?
o “The test to be applied… is whether the risk of damage… was so small that a reasonable man… would have
thought it right to refrain from taking steps to prevent the danger. In considering that matter I think it would be
right to take into accound not only how remote is the chance that a person might be struck (P), but also how
serious the consequences are likely to be if a person is struck (L). BUT I do not think that it would be right to
take into account the difficulty to remedial measures.”
o “If cricket cannot be played on a ground without creating substantial risk, then it should not be played at all”
o This is a fair middle ground

Wagon Mound No 2 (PC 1967)

Ratio A reasonable person would not disregard a foreseeable but small/infinitesimal risk, if that risk could have been avoided
without difficulty, disadvantage or expense (Sounds like B)
Facts A tanker, the Wagon Mound, was docked to take on oil. Due to bad fitting, oil was discharged into the harbour by the
D, covering part of the harbour. Dock owner was welding at the time. Piece of molten metal fell on the water and
ignited the oil on the surface, causing fire, which burned dock and boats. Shipowners sued Wagon Mound.
Trial decision: there was a foreseeable but infinitesimal risk, hence no liability.
Issue Negligent?
Result Trial decision overturned.
Reason
Lord Reid:
- In Bolton, the risk was so small a reasonable person would be justified in disregarding it
- Another reason it was reasonable to ignore the risk in Bolton was the considerable expense in eliminating it!
o Inconsistent with Bolton
o Lord Reid is correcting himself from Bolton reasoning
 If burden is low/high, factor that in
- In case at hand, no avoidance costs, all it will take is to tighten the fitting
- Therefore, reasonable person would not create the risk
Notes
- Bolton correcting himself – consider the burden of eliminating risk

Latimer v AEC (HL, 1953)

Ratio If risk is foreseeable and substantial, cost of precaution is irrelevant. But relevant consideration if risk is foreseeable
but small.
If risk is foreseeable + small, but cost of precaution is low, D may be found to have acted without reasonable care
Facts Exceptional rainfall floods factory floor; P slips, falls and sues
Issue Liable for negligence in this case?
Result Not liable – cost of avoidance would have been to shut down the plant
Reason
Notes
- Foreseeable + substantial – consider and do everything to try to avoid loss.

Consolidation of Cases
- 1) If risk is unforeseeable, no liability
- 2) If risk is foreseeable, is it small or substantial?
o If small, consider:
 Seriousness of consequences
 Cost of precautions
 If low, D may be liable
o If substantial:
 Consider seriousness of consequences
 Do not consider cost of precautions

The Role of Statutes

- IF statute says X and D does not abide by statute – can we classify as negligent?
o Is evidence that a D has breached statute determinant that their act was negligent?

Consider the following hypothetical case:

Facts
- Client struck by the D’s truck on her way to work
- The truck had a statutory cargo limit of 5 tonnes
- The truck was in excess of limit
- Excess weight contributed to accident as it affected driver’s control of the truck
Issue
- Does the breach of a statutory rule amount to a breach of a standard of care?
- Is the D liable merely on the basis of the breach of a statute?
- In assessing the reasonableness of a D’s conduct, is the fact that such conduct breached a statute relevant
consideration?

Why is the question important?

- Tort law and statutory regulation are distinct legal devices
- Tort law developed exclusive of state regulation of hazards, which came later

Three possible answers/approaches

- 1) Breach of statutory duty is determinative of liability
o Breach of stattue is breach of standard of care
o The statutory rule is the standard of care
o The breach of statute is itself a tort
- 2) Breach of statutory rule is totally irrelevant
o Such cases deal with the interaction between two private parties – P and D
o Not between D and the state
o In determining the standard of care, obligations owed by defendant to the state does not matter
- 3) Somewhere in between
o Correct
o Can be considered, but not determinative

Saskatchewan Wheat Pool v The Queen (SCC 1983)

Facts D (Sask Wheat) stored and transported P Canadian Wheat Board’s grain. D loaded a quantity of grain from its elevator
into a ship. It was later discovered that some of the grain was infested with rusty grain beetle larvae. As a result, P was
required to divert ship to Kingston, unload and fumigate grain and ship holds, and then reload grain. At a cost of nearly
$100k, which it sought to recover from D.
Sidenote: P did not allege negligence or any other specific tort.
o Alleged breach of section of Canada Grain Act that prohibited delivery of infested grain to the Board
 o (Breach of statute = tort (argument 1 above))
Issue Negligent for not abiding by statute?
Result
Reason
Dickson J
o No general principle or rationale can be identified from existing cases
o From England, the “painful emergence” of a “new nominate tort of statutory breach”
 Involves a search for “non-existent” Parliamentary intent to create a civil cause of action
 Excruciating tests developed to determine whether duty is owed primarily to the state and only
incidentally to the individual, and vice versa
o In US – some confusion in the cases (dominant position is that violation of statute is per se negligence)
o In Canada:
 1) (Sidenote) – None of this applies to “industrial statutes” (eg. Worker’s comp), which historically
involve absolute liability – no fault required
 Scheme has been worked out
 2) Canadian law rejects the idea of a civil action for breach of statutory duty
 To hold otherwise is judicial legislation
 Rule: mere fact of a statutory breach does not give rise to a civil cause of action
 Instead, the fact of a statutory breach should be considered within the context of a claim for
negligence
 “Civil consequences of breach of statute should be subsumed in the law of negligence”
 “…the violation of the statute should be evidence of negligence on the part of the D”
 Rule: Evidence of breach of statutory requirements is a relevant consideration in assessing whether the
D breached the standard of care
o Other considerations: (statute, custom, what D did and did not do)
 Whether D…
 Operated the terminal to accepted trade standards
 Made regular checks for infested grain
 Tested samples and carried out visual inspections

Notes
- Summary:
o Breach of statute does not, in itself, constitute a tort OR a basis for a standalone civil action
o However, a statute may be used as evidence of the standard of care
o And a breach of that statute as evidence of breach of that standard of care
o Fill in remaining slide!
- Affirmed in Holland v Saskatchewan (2008 SCC 42)

But question remains…

- Intentional breach of statute?
o Dickson J ruled that the fact of statututory breach is to be considered within a negligence claim
o If breach was intentional, P won’t sue in negligence
o Cases exist where courts have treated a breach as forming the basis of a private right of action by attempting to
distinguish Sask Wheat Pool as applying only to cases of negligence

Whistler Cable Television v IPEC Canada Inc. (1992 BCSC) – cannot use on exam (WRONG)
Facts P operated a cable TV system. D operated an unlicensed cable system, thus cutting into P’s business.
Issue Absent a statutory breach, has D committed a tort?
Result No – to compete is not to commit a tort
Reason
Braidwood J
o Sask Wheat Pool confined to negligence law claims
o Does not eliminate “tort of breach of statute”!
Notes
- Braidwood ignores what SCC said
- Broadcasting Act – made it an offence to broadcast without a licence
 o Fine of up to $200k per day – not paid to plaintiffs, paid to regulator
- Whistler Cable wrong on point that there is a tort of statutory breach for intentional conduct
- Breach of statute is evidence of breach of standard of care in negligence actions. It is not determinative

YO v Belleville (City) Chief of Police (1991 ONGD) – cannot use on exam (WRONG)
Facts Police breached provision of Young Offenders Act by revealing P’s criminal record to potential employer. Penalty for
breach was criminal prosecution. P sued police for negligence resulting in lost income.
Trial: judge referred to Sask Wheat Pool
o No tort of breach of statutory duty
o Case should be determined on negligence principles
o But….
 “all Ds had a duty to the P to use reasonable care to keep his youth record confidential”
 Ds were negligent and breached that duty
Notes
- What tort was committed?
o Tort of giving out information?
 Not a tort, but a breach of statutory duty for which the penalty applies
 Also, appears the trial judge treated the breach as determinative

Custom and Reasonableness

Trimarco v Klein (NYCA, 1982)

Facts P injured when glass enclosure door of a bathtub shattered. Practice of using shatter proof glass common since the early
1950s. P also cited sections of NY’s General Business Law that made it a crime not to use shatterproof glass for new
installations after 1973. Door was installed prior to 1973, so criminal sanction did not apply. However, statutory
provisions reflect custom.
Issue Should evidence of custom influence standard of care? YES
Result YES – it is influential
Reason
- “When certain damages have been removed by a customary way of doing things early, this custom may be proved to
show that the defendant has fallen below the required standard”
o Conversely, proof of an accepted practice and conformity by D may establish due care
 Works both ways
- Why?
o 1) Custom shows collective judgment of many people on the issue
 Better than having a judge make it up
 The community generally thinks that acting reasonably (assuming they are acting reasonably) entails
the customary practice – surely must be the case that if community thinks something is reasonable,
who is the judge to disagree?
 Collective judgment
o 2) Shows that precautions that the court is imposing on D are feasible
 If everyone can do it, then D can as well
- BOTTOMLINE:
o When certain dangers have been removed by a customary way of doing things, this may be considered in
determining whether a D has met (or failed to meet) the standard of care
- Two questions:
o Must the custom be universal? NO
 It is enough that it is fairly well defined and in the same calling or business
 Such that D either knows about it or conversely, is negligently ignorant
o Is the evidence conclusive? NO
 Finder of fact must still be satisfied that the custom itself is reasonable
 Just because everyone is doing it does not mean it is reasonable
 Focus is not just on what everyone else is doing, but also on what is reasonable
 Learned Hand J!
Notes
- Breach of custom is not determinative – piece of evidence to show standard of care has been breached
The T.J Hooper (2d Cir, 1932)

Ratio Custom is often helpful in the standard of care analysis, but only if the custom itself is reasonable.
Facts P’s barges towed by D’s tugs were caught in a storm and sank. Tugs were alleged not to be seaworthy because they did
not carry radio receiving sets. NO general custom requiring use of radio sets. Even though they could be obtained at
little expense, fairly reliable with maintenance, and offers “great protection”. D’s held liable at trial, but appealed on
the basis that use of radio sets was not customary in the industry.
USED custom as a SHIELD.
Issue Was the fact that the use of radio sets not customary negate standard of care?
Result
Reason
- Learned Hand for P
o The custom itself is unreasonable
o Barges are unmaneuverable ships – sets are their “ears” and are really quite necessary

Summary (CAN)
- Evidence of custom is never determinative or conclusive in the standard of care analysis (Trimarco)
- It is influential, but only if it is a reasonable custom (TJ Hooper)

Malcolm v Waldick (1991 SCC)

Facts Waldick slipped on ice on D’s driveway and fractured his skull. Ds neither salted or sanded driveway. Claimed this was
local practice in their rural community. Trial and ONCA ruled D’s failure to salt driveway was negligent, regardless of
local custom.
Issue Negligent? Custom reasonable?
Result
Reason
- Iacobucci J: dismissed D’s appeal in which he claimed local custom was not taken into account
o Ds are mistaken: local custom was taken into account but it is not determinative
o Because it was not applied does not mean it was not considered
- D’s did not offer sufficient proof of this so-called local custom
- Relied only on testimony of one D
- We need to hear from your neighbours maybe?
o Local standard (if it did exist) is itself negligent
- “No amount of general community compliance will render negligent conduct reasonable”
Notes
- Salting driveways is easy to diss – how about a more complicated practice?
o Say there is evidence of a practice adopted by most or all *astronauts*, which exposes others to risk
o How do we determine reasonableness?

Ter Neuzen v Korn (SCC 1995)

Ratio If matter is so technical, such that the complexity is beyond the competence of the trier of fact, the trier of fact
cannot judge on reasonableness of custom. (one exception – custom is fraught with obvious risks)
Facts D physician failed to warn P of the dangers of contracting HIV from artificial insemination procedure. At time of
infection, virtually no knowledge among specialists of danger of HIV transmission. Only one letter in a journal that was
not heavily circulated warned of risk. No practice of screening donors or warning anyone of risk. Physician, in not
warning P of HIV transmission risk, complied with standard medical practice. Physician did screen donors, but one
donor was not completely forthright about sexual practices.
At trial – jury found D was negligent. CA – overturned
Issue Negligent conduct in light of standard medical practice?
Result Upheld CA decision.
Reason
- Sopinka J
- Only two ways jury could have found D to be negligent
o 1) The jury could find that D violated the custom (not the case here)
 Evidence of custom in case was unambiguous
 Ds actions complied with that custom
 
Did slightly more even by screening donors

No jury acting judicially can correctly reach a conclusion that D failed to conform to custom of the
profession
o 2) Jury could find that the custom itself was negligent
 This was an impossible conclusion for the jury or judge to reach in case at hand
 The case involved a highly complex area of practice and study
 Highly technical and scientific and beyond the competence of a trier of fact
 It is therefore not open to a trier of fact to find such custom or standard practice negligent
- Only ONE EXCEPTION:
o Custom or standard practice is fraught with obvious risks
 The standard practice fails to take precautions that are readily apparent to anyone with the experience
or knowledge base of the trier of fact
Notes
Bottomline:
o As a general rule, where the standard practice or custom involves complex, scientific or highly complex
technical matters which are beyond the ordinary comprehension of a judge or jury, it is not open to the judge or
jury to find the standard practice or custom negligent (or unreasonable). Such situations are not reviewable by
judge or jury, unles the standard practice or custom is fraught with obvious risks that any reasonable layperson
can detect.

PROOF OF NEGLIGENCE
- The P in a torts case must prove his or her case on a balance of probabilities
o Evidence can be direct or circumstantial

RES IPSA LOQUITUR (“the thing speaks for itself”)

- BAD DOCTRINE – Do not cite!
- Mechanism for dealing with circumstantial evidence
- Traditionally, RIL was considered to be sufficient evidence where:
o 1) The thing that caused the damage was under the D’s control
o 2) The event would not have occurred without negligence
o 3) There is no evidence as to why or how the event took place

- Morphed into interpretation that burden of proof shifted to D to disprove negligence

- RIL is an anomaly because it reverts the burden to defendant (rather than the asserter having to prove negligence)

Byrne v Boadle (Exch, 1863)

Facts Barrel of flour rolled out of D’s shop; struck and seriously injured the plaintiff.
Issue Negligent? What kind of evidence can D use to rebut RIL?
Result RIL - Negligent
Reason
- Barrels of flour do not just get up and walk out of buildings
- Can only result from negligence
- Accident either reveals evidence that D can either rebut or be found negligent
Notes
- Circumstantial evidence, however, not even strong circumstantial evidence

Fontaine v British Columbia (SCC, 1998)

Facts Appellant’s husband was travelling in car driven by hunting companion. Car veered off the road in very poor weather.
Both were killed – no one saw the accident, and no one knew precisely when it occurred. Evidence of driver’s
negligence: car was moving with sufficient force to plough through small trees. But also circumstantial evidence of
other non-negligent causes (poor weather; worn/damaged tires).
Issue Do the alternative explanations negate RIL?
Result RIL does not apply.
Reason
- RIL no longer applies.
o It is technical, confusing and unhelpful
 o Intended as a way of dealing with circumstantial evidence
- NEW TEST for dealing with circumstantial evidence:
o 1) Trier of fact must weigh circumstantial evidence against any existing direct evidence to determine whether
P has established, on BOP a prima facie case of negligence
o 2) If P successfully establishes a prima facie case it falls to D to present evidence to negate the P’s evidence or
P will succeed on the prima facie case.

STANDARD OF CARE IN MEDICAL NEGLIGENCE CASES

Standard of care: apples to apples, oranges to oranges

- If you put yourself as an expert in a specific field – you will be held to that standard
- Beginner – held as a normal, reasonable, prudent practitioner

Principles:
- Typically assessed by looking at conformity of D’s conduct with accepted or approved standard practice
- Courts will not overrule approved practice unless “clearly unnecessary or unduly hazardous” (fraught with obvious
risks)

Sylvester v Crits

Facts 5-year old P injured during medical operation when anaesthetic exploded. Anaesthetist created a highly explosive
mixture of oxygen and ether. Also placed ether can on operating table, close to P’s head. The explosion was caused by
static electricity igniting escaped ether-oxygen mixture accumulated near P’s head.
Issue Negligent? What is the standard of practice?
Result Found negligence. Failure to meet standard of care.
Reason
- Court found there was a “minimum of evidence” on approved standard practice
- Obvious to non-technical person that turning off oxygen tank would have prevented accident
- “It does not require a technician’s understanding to see that a dangerous volume of the gaseous mixture had build up in
the immediate area in which the flash of flame appeared.”
Notes
- Approved standard of practice: typically determined through expert testimony or by reviewing professional
standards of practice
o Often taken as conclusive evidence of the standard of care, unless “fraught with obvious risks”
o Courts show deference as they lack technical expertise to determine what is appropriate

Tailleur v Grande Prairie General

Facts P sustained an injury to her heel and achilles tendon. Her doctor referred her to Dr. Sendziak, an orthopaedic surgeon,
for repair of the achilles tendon. Dr. Sendziak applied a cast running from above the toe to below her knee. Two days
later, notice discolouration of the skin above the cast. Later diagnosed as gas gangrege requiring immediate above the
knee amputation. GG is a rare infection caused by clostridia perfringens.
P sustained injury after swimming in an earthen dugout full of runoff water on an acreage.
GG progresses rapidly. Diagnosed if crushed, dead or devitalized tissue, or other sign of contamination at the wound
site. Treatment includes cleaning, leaving wound open , monitoring, antibiotics.
Issue Negligent? What is the standard of practice?
Result Appeal allowed. No breach of standard.
Reason
- Evidence accepted at trial was that Monica’s wound was a “clean wound”
- Experts agreed that Dr. Sendziak followed proper practice in treating wound
- Orthopaedic experts testified they would have done the same.
o Agreed that cast did not cause gas gangrene
o While cast could delay detection, it would not contribute as a cause
o Most likely cause was inoculation of the bacteria when the wound was sustained
- TJ held that Doctor breached standard of care because he failed to consider and react to the risk of infection in
circumstances
 o Reasoned Dr. should have used an alternative cast to make lower limb visible, aiding visual inspection and
detection… essentially substituted expert facts with his
- Appeal overturned:
o No evidence to support the fact that:
 A) risk of infection increased by circumstances
 B) Doctor breached standard of care by selecting the wrong cast
 C) Earlier detection was possible by visual inspection
Notes
- If it did not spread as rapidly – Doctor may have been able to correct initial mis-diagnosis
- TJ did not have the expertise to comment on technical matters
- Accepted practice not fraught with obvious risks that are detectable without diagnostic or clinical expertise.
- “Where a common and accepted course of conduct is adopted based on the specialized and technical expertise of
professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent.”
o However, “matters falling within the ordinary common sense of juries can be judged to be negligent.”

Error of Judgment
- Medical professionals should not be held liable for mere errors of judgment that are distinguishable from professional
fault
- “reasonable mistake” – mistake every professional in that field would make
o Different from a mistake that most professionals would not make
- Error that is made when a health care provider picks one of many reasonable options
o Reasonable, prudent practitioner might make the same EoJ
- Tunnel vision – negligence – failure to reassess diagnoses when patient is not getting better.
o Professional negligence
- Typical example of EoJ: misdiagnosis that is consistent with approved standard of practice

Comes down to REASONABLENESS:

- Could a reasonably competent and similarly skilled professional have made the same error?
o An error of judgement is an error made in the context of the exercise of reasonable care.

Wilson v Swanson (SCC 1956)

Facts D, highly skilled surgeon, found growth in patient’s abdomen during surgery. Test by pathologist showed growth was
“probably malignant.” D made judgment call to remove organs that would have been untouched in the surgery. Did not
wait for confirmatory test and turns out growth was benign. Patient sued.
Issue Negligent? Error of Judgement?
Result EoJ – no negligence.
Reason
- “EoJ has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge.”
o Evidence suggested an EoJ
- The honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation
- “He obtained the opinion of a pathologist of recognized competence. He then made an admittedly difficult decision…
in making that decision I am satisfied he exercised his best judgment in what he considered to be the best interest of his
patient.”

LaPointe v Hopital Ve Gardeur

Facts 5-year-old cut her elbow, resulting in severed artery and severe blood loss. Attended to by emergency GP, who
realizing he could not fix artery, made judgment call to send her to PEDS. Did not perform blood transfusion, but
communicated gravity of case to PEDS, including possibility of shock. Patient suffered massive cardio-respiratory
arrest due to oxygen loss upon arrival tin PEDS. Left with irreversible brain damage.
Issue Error of Judgment? Negligent?
Result
Reason
- Doctor made an EoJ – exercised proper judgment in ordering transfer
o Decision to transfer without giving her a transfusion was reasonable
- D stopped bleeding and replaced lost fluids
o Insertion of intravenous drip took almost an hour
 o D had to balance delays in transferring patient with waiting for blood

Summary
- A medical professional is held to a standard of care expected of a prudent, diligent and reasonably skilled practitioner
of the same standing and experience
- A medical professional who acted in conformity with approved standard practice is not negligent, unless the standard
practice is fraught with obvious risks
- Medical professionals are not legally responsible for errors of judgment that are distinguishable from professional fault.
DUTY OF CARE

- Difficult to examine – need strong policy arguments

- Unless a D owes a duty to take reasonable care of the for the plaintiff’s interests, breach of standard of care resulting in
harm to plaintiff is not enough

Liability is confined to a certain type of person

- A person who is under a legal obligation or duty to exercise the requisite standard of care with respect to the plaintiff
o Based on precedent for the most part – well-established duties of care (example: doctor and patient)
o QUESTION OF LAW – the judge determines if the duty exists
 Not a question of fact

Donoghue v Stevenson: seminal decision. Leading decision for duty of care.

FLEMING: Courts consider many factors in the duty of care analysis

- History, ideas of moral and justice, social norms, administrative convenience
Winterbottom (and Abinger’s reasoning) based on fear of “impeding industrial development”
- But should no longer be a concern with the advent of insurance
- Insurance has led to widening of scope of duty – industries can obtain insurance against losses

Evolution of Duty of Care Analysis Since Donoghue v Stevenson

- Home Office v Dorset Yacht Co Ltd (1970 HL)
o Focus is on whether there are reasons to exclude the duty of care
- Anns v Merton Borough Council (1978 HL)
o Focus is on whether there are policy reasons that negate or limit a prima facie (foreseeable) duty of care
- Caparo Industries v Dickman (1990 HL)
o 3-part test: foreseeability, proximity and whether it is fair, just and reasonable to impose a duty of care

Winterbottom v Wright (Exch, 1842) [Pre-Donoghue]

Facts D is a coach manufacturer. Contracts with postmaster to maintain coaches in good working order. Postmaster
contracted with third party, Atkinson, to deliver the coach. Atkinson contracts with P to drive coach to its destination.
En route, coach broke down due to latent (hidden) defects. P was seriously injured; sued D (manufacturer).
Issue Was a duty of care owed?
Result No duty owed.
Reason
- Court: NO
o No precedent for this. No privity of K between P and D
o Granting P relief will open the floodgates. Anyone injured by the upsetting of a coach could sue the
manufacturer
- Baron Rolfe:
o “duty” flows ONLY from contract. P’s contract was with Atkinson, and D’s contract was the postmaster
o No duty between P and D. Only basis for a duty to exist in contractual link
o Damnum absque injuria – loss without a violation of legal rights.
Notes
- No K between manufacturer and coach driver… only has connection through several degrees of separation
- Privity of K: only parties to a K have rights under that K
o Bar to recovery in situations
- Court’s explanation is a classic, doctrine-based, reasoning
- Court’s did not consider carelessness of the manufacturer (as done in Donoghue)
Donoghue v Stevenson (HL, 1932)
Facts P, Donoghue, and a friend, go out for drinks. Friend purchases a bottle of ginger beer for P. Bottle was opaque – P
could not see contents, and bottle contained decomposed remains of a snail. P claims she got gastro-enteritis from
consuming drink. Trial court held that no duty was owed. Affirmed by Court of Sessions. P appealed to HL.
Issue Did the D manufacturer owe the P a duty of care?
Result
Majority (Lard Atkin)
o Duty of care has been determined based on precedent or established classifications (contract, bailment, transfer
of custody of chattels)
o This approach results in denial of claims that do not fit established categories.
o Approach is inconsistent with common law methods of adjudication. Rather than relating the specific facts of a
case to establish categories, we should relate them to a general principle.
o That general principle is (what is now known) as “THE NEIGHBOUR PRINCIPLE”: (biblical context)
“love your neighbour becomes in law, you must not injure your neighbour.”
o People who are close to you – have to contemplate actions that may affect them
- What duty flows from this general principle?
o “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour”
o Reasonably foresee injury
- Who is my neighbour? To whom do I owe a duty of care?
o “Persons… so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected”
o Proximity
- D owes P a duty to take reasonable care to avoid acts that will result in an injury to the plaintiff’s life and
property.
o That is, injury to plaintiff’s legal rights
 Misfeasance: interference with legal right (injury of someone’s legal rights – property, life, bodily
integrity)
 Nonfeasance: failure to confer a benefit (does not affect legal rights)
Application
- D intended the product to reach the consumer in the form it left the factory. No real possibility of other inspection. No
contractual relationship but a direct relationship exists. D intended the product to be consumed and D can foresee that
negligence on his part will cause injury to P’s legally protected interests (example: property, bodily integrity)
Concurring (Lord MacMillan)
- Claim in tort is not precluded by the absence of contractual privity (Winterbottom does not apply)
- P in Winterbottom sought to impose contractual liability on D (sued in contract)
- Agrees with application of NEIGHBOUR PRINCIPLE
Dissent (Lord Buckmaster)
o Winterbottom is the law
o Absent a contractual relationship between P and D, there is no duty, with two exceptions:
 1) Inherently dangerous articles (eg firearms)
 2) Articles that are dangerous by reason of hidden defects known to the manufacturer
o Floodgates will open! If yes, then D will eventually owe duty to all persons who consume the product
regardless of contractual privity
Notes
- What about Winterbottom?
o No duty alleged in Winterbottom other than that arising out of contract. Does not apply or govern. (Reading
down)
- Summary (two main/intersecting ideas flow from Neighbour principle)
o 1) Close and direct relationship (proximity)
o 2) Contemplation or foreseeability (foreseeability)
- Emphasis not just on foreseeability of harm, but also on foreseeability of harm to a person who is proximate to the
defendant.
- Queries:
o Which of the two intersecting ideas is the essential component (or trigger) for the duty of care inquiry?
o Is it proximity that triggers the duty of care analysis or is it foreseeability of harm?
o Can we ignore one or find that a duty exists simply on one element?
 - Three approaches/interpretations:
o 1) Classic/current English position – need both
o 2) NZ (formerly CDN) position – foreseeability alone is sufficient
 First, ask if risk of harm is reasonably foreseeable
 If yes, then ask if there are policy reasons to limit: scope of the duty, class of persons to whom it is
owed, or quantum of damagage
 Anns formula
o 3) Foreseeability + proximity – policy limitations (Cooper v Hobart)

Cooper v Hobart
Stage 1: prima facie duty of care
o (a) foreseeability. If yes, move on to (b)
o (b) proximity / “internal” policy
 (i) analogous categories. If no, move on to (ii). If yes, go to stage 2
 (ii) Proximity and internal policy
Stage 2: “external” policy

Deyong v Shenburn (1946, CA)

Facts P, actor, had his clothes stolen from dressing room during rehearsal. Argued producer owed him duty of care to
safeguard property. Because it was foreseeable that producer’s negligence would lead to theft of clothes.
Issue Duty of care owed?
Result NO duty.
Reason
- Did D interfere with P’s legal rights?
- No legal right against the world to have clothes looked after
o There may be harm to a protected interest (clothing), but no legal right entitling P to claim protection of that
interest from D
- Reliance on guarantee by D would have produced a different result
o Modern employment statutes may impose an obligation of safekeeping

Palsgraf v Long Island RR Co (NYCA, 1928) (little weight in Canada – do not use in Canada)
Ratio: Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.”
Facts Packaged dropped by a passenger when D’s employee pushed him onto train. Package contained fireworks, which
detonated. Shock from explosion knocked over scales at other end of platform; one fell and injured P.
Issue Duty of care owed? Whether Mrs. P is in a proximate relationship? Whether reasonably foreseeability? Mrs. P have any
legally protected rights?
Result No duty
Reason
Majority (Cardozo – incorrect reasoning/application)
- “The conduct of the D’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to
the plaintiff, standing far away”
- Persons are not protected from all kinds of harm, but from harm which interferes with a legal right
- “What the plaintiff must show is a ‘wrong’ to herself; ie. a violation of her own right” – not merely a wrong to someone
else or wrongful conduct because “unsocial”
- No duty of care if Mrs. P is not within the ambit of risk created by D’s employee
- Duty cannot be derived from risk posed to another
- “If no hazard was apparent to the eye of ordinary vigilance…”
o Negligence requires close and direct relationship between doer and sufferer AND risk to P must be seen to be
in guard’s contemplation when he created it.
Dissent (Andrews J)
- Negligence is an act or omission which unreasonably affects the right of others, including those not within the ambit of
the risk
o Since employee’s act is a negligent breach of duty owed to holder of package, he is liable for outcome where
there is injury to someone else.
 o To confine breach to the person owed the duty is too narrow: “Not only is he wronged to whom harm might
reasonably be expected to result, but also who is in fact injured, even if he be outside what would generally be
thought the danger zone”
o D not absolved from liability merely because he did not injure “closes and most direct person”
o But rather, a more remote person.
Note
- Sure, it is possible to say bodily integrity affected… however, is this something that you can blame the guard for?
o Confused reasoning
- Ogbogu’s preferred reasoning (broad reasonable foreseeability): Mrs. P legally rights were violated, however, 1) it was
not foreseeable (chain of events) and 2)
o Too remote
o Inquiry instead was: is it foreseeable that anyone might be harmed by pushing a passenger?
 Foreseeablity as the “specific harm”

Home Office v Dorset Yacht Co Ltd (1970 HL)

Facts Several “borstal” boys escaped while guards were sleeping. Damaged a yacht.
Issue Were guards/home office liable for tortious acts of competent adults?
Result D owed owners of yacht a duty of care
Reason
- HO argued duty not recognized OR should not be recognized for reasons of public policy
- Majority applied Donoghue to reach conclusion that D owed owners of yacht a duty of care.
- Outcome/damage is foreseeable and no public policy reasons to deny liability
- Lord Reid: Donoghue is a milestone and Lord Atkin’s speech a “statement of principle”. However, the principle is not
a “statutory definition…” “It will require qualification in new circumstances” (policy reasons)… “ought to apply unless
there is some justification or valid explanation for its exclusion.”
Notes
- Two-step argument: “this has never happened before… no duty of care”
o Injected something new here (foreseeability and proximity exists)
o Policy reasoning has nothing to do with doctrinal analysis
o Policy must be considered because you can’t just impose a duty of care based on proximity and foreseeability.
Look at what impacts the duty has on society (both sides for P and D)
o Step 1: proximity and foreseeability
o Step 2: policy reasons

Anns v Merton Borough Council (1978, HL)

Facts Ps were tenants in a block of flats (owned by council) which developed structural defects because foundations were too
shallow. D responsible for inspecting blocks of flats during construction.
Issue Did D owe Ps a duty of care?
Result Yes – council owed Ps a duty of care
Reason
- Duty of care analysis based on two-part test:
o 1) Is there a prima facie duty of care? (Legal question – solved by looking at facts)
 Is it within the reasonable contemplation of D that his carelessness will likely cause damage to P?
(Foreseeability question)
 Focus is more on foreseeability, rather than proximity
o 2) Are there any conditions which “ought to negate… reduce or limit…”
 Policy considerations: Scope of the duty, class of person to whom it is owed (proximity), quantum of
damages
 Policy, not legal considerations!
 Held: no policy reasons to prevent duty in Anns
Notes
- You do not have to show the court precedent, all you have to do is establish the existence of a two-stage test
o Proximity matter moved over to second stage of test (class of person to whom it is owed)
  D ought to have a contemplation that P was proximate and subject to danger of negligence?
o This test was extremely wide open compared to any duty of care definition
o Overtime, HOL retracted from this openness to restrict it
o Canadian courts have adopted and held to this test – continued reiteration of this test for DoC in
Canada

1. Is there a sufficient relationship of proximity neighbourhood such that, in the reasonable contemplation of the D,
carelessness on his part may be likely to cause damage to the P?
2. If yes, are there any considerations which ought to negative, or to reduce or limit the scope of the duty or the class
of person to whom it is owed or the damages to which a breach may give rise?

Caparo Industries v Dickman (1990, HL) – Two-part test overruled Anns

- Main difference is retreat to foreseeability + proximity
o Rescue proximity from the second stage of the analysis
o Retreat to Donoghue – look at proximity very clearly
- Fair, just and reasonable standard arguably same as second part of Anns test

Cooper v Hobart (SCC 2001)

Ratio:
Facts: 1997, D (Registrar of Mortgage Brokers) suspended a registered mortgage broker’s license and froze its assets because
broker allegedly used investor’s funds for unauthorized purposes. Named P was one of over 3k investors who lost
substantial investments due to broker’s misconduct. Sued D claiming he breached standard of care correlative to a duty
of care owed to investors. Ps alleged that D became aware of broker’s offences in mid-1996. Should have acted earlier
to suspend licence and to notify investors that broker was under investigation. If he had done so, their losses would
have been avoided or mitigated. Ps applied to have action certified as class action and had to show that action discloses
a cause of action (common complaint of negligence). Component: there must be a duty of care owed by D to investors.
Below: TJ – pleadings disclosed a cause of action (CA reversed)
Issue: Did D owe P a duty of care as an investor to protect him from economic loss?
Result: No duty of care (unanimous)
Duty unrecognized, and this is not a proper cause to recognize a new duty.
Reason: “We attempt to clarify the distinctive policy considerations which impact each stage of the Anns analysis”
- Stage 1 of Anns Test: Prima facie duty of care
o (1) Foreseeability: was the harm foreseeable?
 Reasonably foreseeable that the D should have taken care to not affect P?
 If no, analysis ends (no duty of care)
o (2) Proximity
 Focused on the factors that arise from the relationship between P and D
 Close and direct relationship… ask bystander “should I have considered this person?”
 Restated from Donoghue
 Are investors in a class of person that would be in the Registrars mind? (Public is paramount)
 Includes broad application of policy considerations (policy internal to proximity analysis)
 Are there reasons that are apparent, in absence of the facts, to accept or reject relationship?
 Statute – explicitly drafted such that investors should/should not be on registrar’s mind?
 Relationship – what are all the factors that tell us about the nature of the relationship?
 Prong 1: Analogous categories of proximity
 Ask: Are there analogous categories of cases where proximity (closeness and directness) has
previously been identified?
 Analogous/recognized categories:
 (1) Physical harm to P or P’s property
 (2) Nervous shock – create risk that affects P who was not present/direct target of
risk
 (3) Negligent misstatement
 (4) Duty to warn of risk of danger
 (5) Relational economic loss
 (6) Government liability for economic losses and physical damage arise from failure
to inspect property (Kamloops)
  If there is an analogous category, prima facie case established. Go to stage 2
 If no analogous category, go to prong 2 of proximity analysis
 Prong 2: Full proximity analysis
 Factors that allow us to evaluate the closeness of the relationship between P and D and to
determine whether it is just and fair to impose a duty of care on D having regard to that
relationship
 No single unifying characteristic: diverse and fact-specific
 We look at expectations, representations, reliance, property or other interests.
 Side-note: when dealing with public authority, as in Cooper, proximity must be grounded in
statute
 GOAL: establish new categories – “The categories are not closed and new categories of
negligence may be introduced.”
 If new category is found, prima facie case established: go to stage 2 of Anns Test
 IF no new category, inquiry ends – no prima facie case
Stage 2 of Anns Test: “External” Policy Inquiry
o Ask: Are there policy reasons to limit the duty of care?
 This policy analysis is not concerned with proximity (ie. relationship between P and D)
 Rather, concerned with effect of recognizing duty on other legal obligations, legal system and/or
society more generally
Notes
The court is now considering different policy considerations at both stages of the analysis.
- Ogbogu: great to have SCC decision that sets out our own unique path on duty of care analysis. However, a very
confusing case.
- Problem 1: Scope of “internal policy”
o Insufficient proximity between Registrar and investors:
 “Such a duty…would come at the expense of other important interests, or efficiency and…public
confidence in the system as a whole.”
o Sounds like stage 2 (residual or external policy) analysis
o Concerned with the effect of recognizing duty on other legal obligations, the legal system, and society more
generally
- Problem 2: Confusing on issue of policy
o Internal policy (“questions of policy, in the broad sense of that word”)
o Better to say balancing the rights of individuals against the need to co-exist with others
o Do policy considerations really add anything at this stage?
o Leaving a concept at the mercy of policy and at the mercy of the judge
- Problem 3: Analogous Categories?
o How analogous do the categories have to be?
o Does Cooper not fit into government liability of economic loss?
- Problem 4: When dealing with public authority, as in Cooper, proximity must be grounded in statute
o Rare to find express statement of proximity
o Question is whether statute, which is designed to protect public, can be read as creating a right in the plaintiff
as an individual
 Forcing plaintiff to decipher legislative intent
o SK Wheat Pool, per Dickson J: “We must refrain from conjecture as to Parliament’s unexpressed intent.”

Practice Case

- Foreseeability – reasonably foreseeable that the lack of the deleted clause could result in loss in employment
- Proximity – reliance, representation, expectation – binds the employees to the Minister. Could further be argued that
the proximity is grounded in statute.
o MUST be grounded in statute
- Policy?
o Advocating duty of care – trust in the public, etc.
o Against duty of care – slippery slope, as soon as you establish a duty of care, there’s a danger of enabling
people to sue government
James v BC (2005 BCCA)

Facts Sawmill permanently shut because Minister and staff inadvertently removed from tree farm license clause that would
have prevented mill closure. Plaintiff claimed pure economic loss. Two sub-categories: (1) the independent liability of
statutory public authorities, (2) negligent performance of a service.
RJ: (1) inapplicable. Duty imposed by statute is to public as a whole, not to workers in forestry industry. Case is
indistinguishable from Cooper. Duty established. Cause of action disclosed. Class action certified.
Issue
Result
Reason
What about category 2?
o Negligent performance of a service – 3rd party beneficiary can recover for negligence (eg. Beneficiary in will)
o Draws analogy: minister and licensee, 3rd party is forestry workers.
- BCCA: Prima facie duty of care: foreseeability + proximitiy (YES)
o TJ wrong – case is distinguishable from Cooper
o Minister has discretion – Registrar in Cooper did not
o Legislation required Minister to balance competing interests in implementing conditions
o Negligence was operational in nature – not arising from policy but from implementation of the policy
o “It can be safely said that the more ‘operational’ a power or duty may be, the easier it is to superimpose upon it
a common law duty of care” (Anns)
- On Category B (negligent performance of a service):
o Analogy works!
o “The employees can be said to have relied upon the minister to exercise reasonable care to retain Clause 7 in
the licence unless and unti he reached a decision on policy grounds to remove it.”
o Even if analogous categories did not exist, we would still find this meets full proximity analysis based on
“expectations, representatsion, reliance…”
Notes
- Head scratchers
o If Minister had discretion to withdraw the clause at any time, how could P have reasonably relied on it?
o Cooper may be confusing, but what effect has it had on the cases?
- Vast majority of cases – Ds win where courts are called upon to recognize a new duty of care
- Major shift from pre-Cooper
o Childs v Desmoreaux

Childs v Desmoureaux (SCC 2006)

Facts Dwight Courrier and Julie Zimmerman hosts a BYOB party. Guests drink alcohol. Inebriated Desmoreau (D) drives
away, causes accident, injures P. Only alcohol served by hosts was “three-quarters of a bottle of champagne in small
glasses at midnight.” Hosts knew D was a heavy drinker – had 12 beers – left party with very high BAC.
Issue Does a social host owe a duty of care to a person injured by a guest who has consumed alcohol at his/her party?
Result
Reason
- Is there an analogous category?
- Canadian law does not provide a clear answer on whether duty is owed by social hosts
- Duty recognized for “commercial alcohol providers” (Stewart v Pettie)
o This is not the same thing
- Three main differences in “proximity” relationship:
o 1) Commercial hosts are better able to monitor consumption
 Easy and expected by host, patrons, public
 They ensure payment
 Regulators require training in monitoring
o 2) Sale and consumption of alcohol strictly regulated
o 3) Duty is necessary to suppress “perverse” incentive that CAPs have to encourage over-consumption for
profit.
- Bottom-line: Not an analogous category.
- New duty? NO
- Injury to Ms. Childs was not reasonably foreseeable on the facts
 o TJ did not find that hosts knew or ought to have known D was too drunk to drive
o Should they have reasonably foreseen injury to road users based on D’s past history
 History of alcohol consumption and impaired driving does not make impaired driving and consequent
risks to motorist foreseeable! Frail hypothesis?
- No proximity
- Nonfeasance, not misfeasance – “wrong alleged is a failure to act or nonfeasance in circumstances where there was no
positive duty to act.”
Notes
- Ogbogu: does not understand reasoning. Should be RF that hosts knew or ought to have known D was too drunk to
drive.
o Should have recognized a duty
o Duty of care  not every deserving plaintiff ought to recover
o Perhaps there was a middle ground that the courts should have pursued.
DUTY TO RESCUE

Scenario:
- Person A rents a boat to B. A’s negligence in maintaining the boat resulted in the boat to take on water. C comes to
rescue B, and in the event the rough seas swamp C’s boat and she dies. C’s family wants to sue A
Issue
- If owing to D’s negligence, a Person (B) is put in the position of danger, does the D owe a DoC to a 3 rd person (C) who
suffers harm when attempting to rescue B?
Notes
- Pre-20th century, little sympathy for rescuers
- Viewed as meddlesome busybodies. Authors of their own mistofrtune. Claims rejected on grounds that duty to rescuer
was not foreseeable OR that the rescuer consented to the risk OR that the incident necessitating rescue was novus actus
interveniens

Haynes v Harwood (CA 1935)

Ratio If the injury to the rescuer is foreseeable, then D owes a duty of care to the rescuer.
Facts D negligently left horses untied on busy street. Horses were aggravated by young boys, who threw rocks at the horses.
Horses scampered off, endangering the lives of several pedestrians. Police officer, seeing the danger, attempted to
rescue pedestrians by stopping the horses. Rescue was successful, but he was injured in the process, he sued D.
Issue Duty owed?
Result Boys owed a duty
Reason
- Greer J
o D owes a dury of care to all those who could lawfully use the road, including the police officer
o No novus actus, because startling of horses by children o na busy street is foreseeable. It is the very thing to be
expected. Intervention by boys did not break chain of causation – it completed it.
o Also, no volenti, act not based on consent because of
 Moral compulsion to act (not consent – not accepting the risk)
 Time constraints (heat of the moment)
Notes
- (Injury) within the ambit of the risk

Since Haynes, rescuer actions almost invariably succeed:

Corothers v Slobodian (SCC 1975)

- Rescuer left site of MVA (motor vehicle accident) caused by D’s negligence. Ran down highway to seek assistance. Hit
by oncoming vehicle and successfully recovered

Urbanski v Patel (MNQB 1978)

- D, surgeon, negligently removed one kidney from P’s daughter
- P then donated his kidney to daughter. Sued D for loss of his kidney. D held liable on basis that P was a rescuer.
- How far is the rescue/injury really RF?

Reasoning for rescuers allowed to recover:

- Cordozo J:
o “Danger invites rescue… the wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to
his rescuer”
o “The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had”

Why is it important that the duty to rescuer is independent of duty to person in danger?
- Rescuer’s ability to recover is not affected by defences that D may have against person in danger
o No injury to person in danger
o Volenti
o Contributory negligence

Bottomline:
- Duty owed to rescuer is independent of any duty owed to the subject of the rescue
 - The only limit to rescuer’s ability to recover is that the intervention must not be so foolhardy as to be unforeseeable
o Is a person who injures herself liable to a rescuer?
PSYCHIATRIC HARM (NERVOUS SHOCK)

- Cases where the alleged damage cannot be tested or assessed by way of visual inspection
- Not objectively verifiable – issues take us to subjective recesses of aspects of science that are less intuitive
- Typically pose remoteness problems regarding whether specific kind of damage was foreseeable

Two categories of claimants:

- Primary victim: claimant’s psychiatric harm arose directly from D’s negligence
- Secondary victim: claimant’s harm arose indirectly from D’s negligence
o Tend to raise DoC and remoteness issues

Primary Victim

Saadati v Moorhead (2017 SCC)

Facts MVA, second in a series of five, involving P and D. TJ found that second accident caused psychological injuries.
CA reversed because finding based on testimony of friends and family, and not to expert evidence of medically
recognizable or recognized psychiatric harm. Also, that S did not specifically plead or argue mental injury.
Result SCC restored trial decision.
Reason
- Brown J
- On sufficiency of pleadings:
o Rule of procedural fairness – cases would not be decided on ground not raised
o Each party entitled to know and respond to case that it must answer
o However, “in claims of mental injury, it is generally sufficient that the pleadings allege some form of injury”
 Plaintiff should have pleaded psychological injury. Just because they do not explicitly state
“psychological” does not mean it is not pleaded.
o Rule satisfied by many allegations of psychological reaction in oral and written submissions combined with
broad heads of damage in pleadings.
- On whether proof of recognized psychiatric harm required:
o NO. Recovery for mental injury depends on criteria applicable to any negligence action
o The law of negligence accords identical treatment to mental and physical injury
o Claimants alleging physical injury do not have to prove a classificatory label – same applies to claimants
alleging mental injury.
o Focus is on symptoms and their effects, and a trier of fact is entitled to reach a conclusion on this based on any
relevant evidence.

Secondary Victim

Alcock v Chief Constable of the South Yorkshire Police (HL 1991) “Hillsborough Disaster”

Facts Liverpool and Nottingham. High steel fencing placed between spectators and pitch due to hooliganism concerns. Fans
arrived early and there was considerable buildup of fans concentrated outside turnstile at one end of the stadium.
Bottleneck develops around turnstiles involving around 5000 fans. Police opened outer exit to relieve the bottleneck.
Results in thoursand of non-ticket holders spilling into stadium. Led to a crush at the front where spectators were
pressed against the fencing (Crush – 95 persons died, over 400 injured). One P was at stadium and saw whole tragedy,
he knew his two brothers were in the crush and was later informed they died. Another P, Alcock, brother-in-law was in
another section. He later identified his injured brother-in-law at the morgue. All unfolded on live TV and recorded
broadcasts. However, as per broadcast guidelines, scens showing suffering or dying of recognizable individuals were
not depicted – no close ups. 16 Ps brought action claiming “nervous shock” alleged to have been caused by seeing or
hearing news. Police claimed no DoC owed to nervous shock claimants.
Below: TJ found in favour of 10 Ps, including Harrison and Alcock, and against 6.
CA overturned – no recovery
Issues Are the Ps sufficiently close to the victims? Can a brother recover? Brother-in-law?
 Does viewing a simultaneous broadcast of the incident qualifying as witnessing by sight or hearing? Is shock caused by
viewing broadcast enough?
Does it matter that P did not witness “immediate” aftermath?
Result HL affirmed – no duty of care owed
Reason
- Claims under this category have very specifc features – absence of those features disqualifies the claim
- As with every negligence claim, the risk of psychiatric illness resulting from shocking event must be reasonably
foreseeable
- To limit volume of potential claims from shocking events, only “proximate” Ps can recover. That is, Ps that are
“proximate” to primary victim and to the accident or its immediate aftermath.
- Nature of claim
O 1) Shocking event must result in recognized psychiatric harm. Mere grief not enough
O 2) Only psychiatric harm induced by shock can be the basis for recovery
 Psychiatric harm caused in other ways, such as from caring for disabled relative, not enough
O 3) Shock and resulting psychiatric illness must arise from seeing or hearing the shocking event.
 Not enough to merely be informed of, or to read or hear about it
O 4) Shock must be sudden appreciation by sight or sound of horrifying event, which violently agitates the mind
 Slow accretions of grief not enough
- Duty of care analysis
O Caparo: RF + proximity + no policy reasons negating duty
O Foreseeability:
 Not really an issue: RF that the psychiatric injury suffered by the Ps would affect persons of ordinary
fortitude
O Proximity:
 Control mechanism – only proximate plaintiffs can recover
 Three elements of the proximity analysis (all required):
 Relational proximity: is the P within a class of persons whose claims should be recognized?
 Locational/temporal: Is the shock suffered by the P close both in time and space to the
accident or its immediate aftermath?
 Visual/aural: Did the P actually see or hear the shocking accident or its immediate aftermath?
 Relational proximity
 Is P’s relationship to the primary victim sufficiently close such that it is reasonably
foreseeable that P would suffer nervous shock if primary victim is injured?
 P must prove she is sufficiently close to primary victim
 Rebuttable presumption
 Case-by-case decision basis
 Locational/Temporal
 “Shock” must occur close in time and space to the accident or its immediate aftermath
 Shock from subsequent identification qualifies, but not too long after!
 Eg. Mcloughlin (1 hour after incident) can recover. Alcock (8 hours) cannot recover
 Visual/aural
 P must actually see or hear incident or immediate aftermath
 Could be in person or through simultaneous broadcast (eg. TV)
 If TV, suffereing of primary victim must be portrayed (generalized portrayal won’t do)
- Why none of Ps in Alcock succeded
O All elements of proximity must be present
O Relational: Not established at trial that there was close relationship between primary and secondary victims
 Plaintiffs did not attempt to prove they were “close” with the primary victims
O Locational/Temporal: Only Harrison and Alcock present, but did not find out about fate of relative until later
O Visual/aural: Harrison heard on phone hours later / Alcock found out in morgue 8 hours later / all others
watched on BBC
GOVERNMENT LIABILITY

- At common law, Crown (gov’t) was, for all practical purposes, immune from tort liability
- Petition of right procedure required permission from Crown to sue Crown
- Unclear if petition of right applied to tort actions
- Powers and privileges accorded to Crown under common law (prerogative) could only be affected by express statutory
authority
- Fed and prov governments have adopted legislation permitting legal proceeding against the Crown

Crown can be sued in tort as if it were an ordinary person, for:

- Torts committed by its officers, agents
- Breach of duties owed to servants and agents as their employers
- Breach of duties linked to ownership or possessory interests in property
- For actions taken under statute, regulation or by law
- Directly or Vicariously

Note: Municipalities did not have immunity at common law

Actions against Crown:

- 1) misfeasance in a public office
o Intentional tort
- 2) Negligence

Misfeasance in a Public Office

- New emerging tort – most actions against public authorities based on negligence
- Deals with claims of intentional misconduct by crown through its agents
- “Abuse of public office”

Negligence
- Most government activities are judged according to the ordinary principles of negligence law
o Public official causes MVA in course of duties OR gives out negligent advance on which others rely
- Public officials owe duties of care like everyone else and must conform to legal standards of care.
- Issues arise where governmental conduct relates to political activity, policy-making, budgeting
o Involves a complex matter and is considered non-justiciable (outside of Courts power)
o Courts reluctant to impose negligence on these kinds of activities
 Democratic concern: gov’t officials should be exclusively accountable to those who elected them – no
second guessing by courts
 Pragmatic concerns: courts lack access to expertise and resources to get involved in such activities
 Floodgates concerns: Litigation might proliferate if such decisions are reviewable

- Cooper v Hobart: Stage 2 – “External policy”

o Questions around the competency and legitimacy of courts second-guessing political/policy decisions
o Policy = non-reviewable (no liability)
o Operational distinction = reviewable (liability)
o Policy decisions: questions about whether and how to implement a gov’t program (discretionary)
o Operational decisions: questions around actual operation/delivery of the program once it is implemented

Kamloops v Nielson (1984, SCC)

Facts Municipality failed to enforce bylaws and prevent completion of a house with defective foundations. Construction not
built according to approved plans and was subject to two stop-work orders. Despite this, builder, to building inspector’s
knowledge, completed building. Owner (city alderman and builder’s father) moved in and subsequently sold hose to P,
an unwitting purchaser, who discovered defects and sued city. PURE ECONOMIC LOSS.
Issue Is this a operational distinction? Is the government liable?
Result SCC imposed liability – matter was largely OPERATIONAL.
Reason
- Municipalities have a statutory authority to enact bylaws to regulate construction of buildings, and to ensure
enforcement via inspection.
 - Deciding whether or not to act on that authority by enacting bylaws and setting up an inspection system is POLICY
matter
- Once said bylaws are enacted and inspection system set up, manner in which it is operated is OPERATIONAL matter
- Policy-operational distinction not the last word on the matter!
o Gov’t authority may still be liable for failing to consider whether or not statutory power should be exercised
o City might still be liable in the absence of bylaws and an inspection system
o For failing to consider whether it should have instituted bylaws and system
o In making policy decision, decision-maker must act in good faith (eg. No improper purpose or unreasonable
decisions)
o Bottomline: policy decisions are not justiciable in tort law – cannot expose gov’t to liability

Just v BC (1989, BCSC/SCC)

Facts Winter day on busy highway. Traffic at standstill. Boulder came loose from step wooded slopes above crashed down on
P’s car. Killed P’s daughter and severely injured P. Earlier rock falls nearby, plus freezing and thawing and heavy snow
build-up on trees all creating a high risk of rock falls. There is a system set up by the Dept of Highways for inspection
nand remedial work. Rock work engineer, carried out visual inspection for risk of rock instability. He then reported
findings and recommendations to District Highways Manager who in turn submitted requests for the provincial rock
scaling crew to be sent it.
Issue Is the decision to adopt a visual inspection system a policy decision?
Result Policy decision.
CA affirmed
SCC Reversed
Reason
BCSC (McLachlin):
o Policy decision – not reviewable by court
o Gov’t as a matter of policy, adopted a system of visual inspections
o Unless it can be shown that Mr. Oliver conducted visual inspections negligently, no liability
SCC (Cory J):
o Allegations of negligence fell within the operations aspects of governmental activity
 Policy is limited to threshold decisions
o That is, the initial decision about whether (not how) something will or will not be done
o Policy decisions are made usually at high levels of authority
o And involved considerations such as budgetary allocations or other political matters
o Beyond this, everything else (manner and quality) is operational!
o “Manner and quality” includes resource allocation and other discretionary matters
Notes
- Sopinka J (Dissent): extent and manner of inspection program is policy

CF Brown v BC (1994, SCC)

Facts P was driving from Gold River to Campbell River. 30 minutes out, skids off icy path on highway and over embankment
and suffered catastrophic injuries. Three other accidents occurred on same stretch of highway that morning.
BC Dept of Highways had instutted program for snow and ice maintenance on highway. Two schedules – Winter and
Summer. Accident occurred in November (which fell in summer). Highways Department crew still on summer
maintenance schedule.
Issue Was the department’s decision to maintain summer schedule a policy or operational one?
Result Policy
Reason
- Decision to maintain a summer schedule, with all that it entailed in terms of reduced service, was one of policy
- Involved “classic policy considerations of financial resources, personnel and significant negotiations with government
unions”
- Can only be impeached if an improper or irrational exercise of discretion or made in bad faith
- Query: But is it really a threshold decision as per Just?
o Not a matter of whether something should or should not be done about snow/ice
o But more one of how to go about it (manner and quality)
Notes
 - BOTTOMLINE: threshold decisions – DEFINITELY POLICY
o Manner and quality of system established by threshold decision: Definitely maybe
- If Ogbogu tests – it will for sure be a clear policy

Swinamer v AG Nova Scotia (1994, SCC)

Facts P was injured when tree along highway, which had Dutch Elm disease, fell on P’s truck. Province had initiated a
preliminary program of identifying and flagging tress with disease. With the aim of deciding on a policy once it had
established the scope of the problem (such as immediate removal, gradual removal, etc.). Accident occurred during pre-
policy period.
Issue Was the decision to conduct survey a policy decision?
Result
Reason
- Two interpretations:
o 1) Decision to determine the cope of the problem before making a policy decision was in and of itself policy
(Cory J)
o 2) No provate law duty on a public authority until it makes a policy decision (McLachlin and LaForest)
- Pre-policy is not subject to private/tort law duties/liability unless in the exceptional circumstance where the gov’t
should have (at least) adopted some policy in the interim.
o Exception does not apply here as province was acting reasonably in first trying to inform itself about the scope
of the problem before deciding.
Notes
- Ogbogu likes McLachlin reasoning more

o
NEGLIGENT MISREPRESENTATION

Candler v Crane (1951)

- Lord Denning ready to recognize tort of negligent misrepresentation to impose duty on professionals retained to make
reports. Owed to anyone to whom the report is shown OR anyone to whom they know the report will be shown. For
PEL arising in the very transaction for which the reports was prepared or shown
- Majority, “timorous souls”, said NO

Hedley Byrne & Co Ltd v Heller (HL 1963) “Donoghue v Stevenson of pure economic loss”

Facts P inquired into credit-worthiness of third party company to which it was contemplating extending credit. Inquiry
lodged with 3rd party company’s bank, who respond “in confidence and without responsibility” that their client is “good
fir its normal business engagements.” When told amount under consideration was 100k, responded, “without
responsibility”, that “figures are larger than we are accustomed to see.” P extends credit based on statements and lost
$17,600 when third party went belly up. Sues bank.
Issue Whether negligent misrepresentation can create liability?
Result No recovery – but only because of disclaimer
Reason
Lord Reid:
- Rule against recovery for negligent misrepresentation is wrong because words are more dangerous than deeds
- While the law cannot ignore negligent misstatements, liability cannot be imposed without something more
- No reason “something more” cannot be negligence, provided parties are proximate
- Degree of proximity?
o 1) D must have assumed/undertaken responsibility to employ a skill for the assistance of another person
o 2) P must have reasonably and detrimentally relied on D’s undertaking
Lord Pearce:
- Same arguments as Reid
- Words have greater potential for injury than deeds (affirming Denning)
- A special relationship (proximity?) extends to people who assume responsibility in a way that attracts reasonable and
detrimental reliance
- However, disclaimer prevented duty of care coming into existence.
Lord Morris:
- “My lords… it should now be regarded as settled that if someone possessed a special skill undertakes… irrespective of
K, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise.”
- Duty also arises if a person who “others…reasonably rely on his judgment or skill… or ability to make a careful
inquiry” gives information or advice to, or allows his advice to be passed on to, another who he knows will rely on it.
Lord Devlin
- Problem in such cases is a by-product of the doctrine of consideration
- If P paid even a token (1c) for the information, we could call it a K and be done with it.
o “If it were possible…to construct a K without consideration…”
- But contract is not the end of liability:
o “A promise given without consideration…cannot be enforced as a K…but if the service is…performed…
negligently, the promisee can recover…in tort.”
Notes
On what legal principle is the tort action founded?
- A special relationship “equivalent to K”
- Where there is an “assumption of responsibility” which, but for the absence of consideration, would be a K
When can we infer “assumption of responsibility” or “reasonable reliance”?
- The more formal and professional the relationship…
- Is the advisor acting purely out of good nature or in response to some indirect incentive or benefit?
SUMMARY:
- Basis of liability for negligent misrepresentation
o 1) An undertaking or assumption of responsibility by the maker of the representation (OR “invitation to reply”)
 Whether they are professional or not does not matter
o 2) Actual, reasonable, detrimental reliance by P, typically demonstrated by having used information for which
D assumed responsibility
Deloitte v Livent (2017 SCC) [Canada application of negligent misrepresentation]

Facts Livent’s directors manipulated company’s financial records to enhance success (fraud). Deloitte, as auditors,
failed to discover fraud. In August 1997, Deloitte identified irregularities in the reporting of profit from asset sale.
Deloitte and Livent disagreed on irregularities. Rather than resign, Deloitte helped Livent prepare a press release for the
purpose of soliciting investment. The press release misrepresented the basis for the reporting of the profit. In October
1997, Deloitte provided a comfort letter for a public offering. Deloitte also prepared Livent’s 1997 audit. Fraud was
discovered by new management appointed by new equity investors. In Nover 1998, Livent filed for insolvency
protection and in 1999, went into receivership and sold its assets. Livent, on behalf of its shareholders, sued Deloitte for
negligent misrepresentation.
Purpose of misrepresentation in press release/comfort letter vs audit critical
Press release/comfort letter was for purpose of informing investors of Livent’s financial position or helping Livent
solicit business.
Issues Does Deloitte owe Livent a duty of care and what is the nature or scope of that duty?
Is Deloitte liable for losses to the extent claimed by Livent?
Below: Trial:
o Deloitte owed a duty of care to provide accurate information to Livent’s shareholders
o Duty breached either when it failed to discover fraud or when it signed off on the audit
o Deloitte is liable for losses flowing from when it should have resigned to insolvency date
Reason
McLachlin, Wagner, Cote (Dissenting in part)
- “Three purposes of Livent’s audit statements are discernable”
o 1) To provide Livent with accurate view of finances for purpose of attracting investment
o 2) To uncover errors or wrongdoing for purpose of enabling correction
o 3) To provide reports that shareholders could rely on to supervise management
 Perfectly reasonable for reliance here
- In essence, Livent never relied on press release or comfort letter to oversee management or to uncover any wrongdoing
o Not the purpose of the audit
- Deloitte could not have reasonably foreseen use for both purposes and could not have reasonably relied on both for
both purposes
Livent’s claims:
- Livent relied on misrepresentations that arose following failure to resign after discovery of irregularity in reporting.
o Would have allowed shareholders to infer that there was something wrong and discovered sooner
o (ie. including press release, comfort letter, and statutory audit) – masked the wrongdoing, led shareholders to
believe everything was okay.
- Misrepresentations “impaired its ability to oversee its operations” and supervise management
- Livent would have gone belly up sooner, or become unable to attract further investment. Deloitte therefore responsible
for losses amounting to differeince in value from time it should have resigned to insolvency date.
Deloitte’s claims:
- The alleged misrepresentations had nothing to do with the loss suffered
- Specifically, the misrepresentations did not impair Livent’s ability to oversee its operations or supervise management
Gascon and Brown JJ:
- “This appeal provides the court with an opportunity to affirm the analytical framework by which liability may be
imposed in cases of negligent misrepresentation.”
Anns/Cooper
- Applies to pure economic loss arising from auditor’s negligent misrepresentation
- We have never applied the refined Anns/Cooper analysis in a case of auditor negligence, so here goes
- Stage 1:
o Courts flip order of proximity and reasonable foreseeability for some reason…
o Proximity:
 In negligent misrepresentation cases, proximity assessed by reference to two factors;
 1) D undertakes to provide a representation in circumstances that invite reliance by P (undertaking)
 2) P reasonably relies on the representation to her detriment (reasonable reliance)
o No proximate relationship previously established between auditor and client for purposes of soliciting
investment
o Press release/comfort letter:
 Undertaken for purpose of helping Livent solicit investment
 Livent was entitled to rely on Deloite to carry out this service with reasonable care
  Relationship of proximity exists for losses within the scope of this undertaking
 Deloitte “never undertook to assist Livent’s shareholders in overseeing management”
 Livent had no right to rely on these representations for that purpose
 Reliance for this purpose was not reasonable (hence no proximity)
o Statutory audit?
 Prepared to allow shareholders “to collectively supervise management” and to oversee operations
 Proximity in this case is an established category (Hercules)
 Reliance is both reasonable and reasonably foreseeable
Notes
- Comfort letter in contracts – not intention to create legal relations. HOWEVER, important in terms of representations
made in tort law.
- “You (Deloitte) did not provide enough information to properly oversee management.”
Dissent
- Agreed largely – but issued dissent on one point
- No factual basis for conclusion that Livent relied on audit to supervise management or oversee operations
o Ogbogu believes this to be true
- That was never pleaded or argued at trial
- But we agree with duty of care analysis
- “The factual basis for establishing loss on the basis of shareholder supervision [is] entirely lacking.”
o Ogbogu agrees
CAUSATION

Factual causation, or “cause in fact”

- Purely factual causation of whether, the unreasonable risk created by D, as a matter of fact, caused the injury suffered
by P

Cause in fact is a straightforward concept. Requires that we simply like D’s conduct with the P’s injury.
- Did the D’s conduct, on a BoP, cause the P’s injury?

Exception:
- 1) Courts have struggled with what legal test to use in determining cause in fact
- 2) Evidence often unclear on what happened
o Especially where there are several possible causes, including D’s negligence

Determining Proof of Causation – “But For”

- “But for” (i.e. without) the D’s negligence, would the P have suffered the injury?
o IF no – D is liable
 P would not have suffered the injury without D’s negligence
o IF yes – D is not liable
 P would have suffered the injury regardless of D’s negligence
- The test generally works well in the vast majority of cases

What is the problem?

- In some situations, the “but for” test leads to perverse results and the conclusion that causation is not established.
- When, as a matter of common sense and/or justice, it is quite clear that the act in question contributed to the injury
- These situations have forced the courts to invent other tests for causation where necessary
- Two examples:
o 1) Pre-emptive causation
o 2) Duplicative causation

Pre-emptive Causation

Theoretical problem – no case law

Example: P is just about to drink a cup of tea that X, a third party, has laced with poison. D fires gun negligently and kills P.
- “But for” D’s negligence, would P have died?
- Yes. – P would have died anyway through the fault of X (poisoned tea)
- D merely pre-empted death by poison

Duplicative Causation
- D and X each independently start fires. P’s house is destroyed by fire. Not clear from evidence which fire triggered
destruction of P’s house. Each fire, on its own, is sufficient to destroy P’s house. The “but for” test would result in no
liability for D or X.
- But for D’s negligence, damage to P’s house would have occurred anyway (Because of X’s negligence)
- But for X’s negligence, damage to P’s house would have also occurred (Because of D’s negligence)

- Where more than one party independently but concurrently cause the P’s damage
o Resulting in none liable under the “but for” test

Lambton v Mellish (Ch D, 1894)

Facts: Nuisance case, but reasoning relevant. Two companies catering to visitors in common area by providing games, rides,
organ music, etc. This generated a lot of noise, which was found to be a nuisance. D argued that noise can only be
factual cause of nuisance if, and only if, the nuisance would not have occurred but for their activities.
Reason
- That is, not liable because without the noise generate by them, P would have still suffered the nuisance owing to other
company’s activities.
 - Chitty J: If there are two (or more) tortfeasors, each aware of what the other is doing and each contributing to the
damage, each is liable in full

Corey v Havener (Mass SC, 1902)

Facts: P was riding his horse-drawn carriage. Two Ds came up from behind on two loud and smoky motor tricycles which
backfired as they passed him. P was injured as a result of the horse being startled. Jury found both Ds contributed to P’s
injury.
Notes: Notwithstanding the “but for” test, two (or more) tortfeasors who jointly or concurrently cause or contribute to the P’s
injury are each fully liable for damages.

Barnett v Chelsea & Kensington Hospital Mgmt Comm (QB, 1968)

Facts: Night watchman (P’s spouse) and two co-workers drank som tea around 5am. They became sick and went to the
hospital when the day workers arrived. Nurse informed doctor-on-call the patients were vomiting. Doctor told them to
go home and did not admit or treat them. P’s spouse died.
Reason:
- First – D owed a duty of care and breached the standard of care
- But did the D’s negligence cause the P’s spouse’s death?
o Evidence was that even if P’s spouse was admitted and treated properly, he would have died anyway because it
was not possible for him to have taken antidote on time.
- Neild J:
o Evidence is significant – even if D had responded properly, there would not have been enough time to save P’s
spouse
o But for D’s negligence, P’s spouse would still have died, so no liability.
Notes
- Doctor’s failure to admit/treat would have been cause in fact if, and only if, the P’s spouse would not have died without
the failure.
- To figure out the “but for” test, ask:
o 1) What happened?
 P’s spouse died
o 2) What would have happened if the negligence is taken out of the picture?
 P’s spouse would have been admitted and treated, but still would have died
o Thus, since injury would have still occurred regardless of D’s negligence, no causation and no liability

Natural Cause + Tortious Cause

What if one of the causes is a natural cause?

- A negligently pollutes a river
- River is also polluted by non-negligence circumstances (eg. A natural disaster)
o Is A liable?
o A would argue that pollution would have occurred without her negligence

Kingston v Chicago & NW Rwy (Wis SC, 1927)

Facts: Damage to P’s property united fire – from D’s locomotive of unknown origin.
Notes:
- If, in situations of duplicative causation, one of the causes is a natural cause, then there is no causation and the
tortfeasor will not be liable. But the D must demonstrate that the other cause was a natural cause
- What happens if the other cause is of unknown origin?
o Doctrine DOES NOT APPLY
- Duplicative causation = Cauess occur contemporaneously or concurrently
- Wrap up:
o Where the D’s negligence cause or materially (and concurrently) contributed to the P’s injury, D is fully liable.
 Except where the D can demonstrate that the other contributing (and concurrent) cause was a natural
cause

- What happens if the causes are not concurrent, but sequential?

o Two unrelated, sequential events cause damage to P
o Which D is liable?
 o “Independent intervening cause”

Sunrise Co v The Lake Winnipeg (SCC, 1991)

Facts: P’s boat was grounded two consecutive times in unrelated accidents. First grounding resulted from D’s negligence.
After this accident, on way to anchorage area, boat was grounded again either through owner’s negligence or force of
nature – not clear. Each incident alone would have necessitated detention in dry dock for repairs. Repairs for both
incidents in dry dock was completed in 27 days. Repairs for first incident alone would have taken 27 days. Repairs for
second incident alone would have taken 14 days.
Issue Who is responsible for the loss of earning resulting from the detention for 27 days?
Reason
- L’Heureux-Dube
o When you have two unrelated incidents which are sequential and which cause property damage and the first
incident was sufficient to cause all of the loss, the nature of second incident or cause (tortious or non-tortious)
is irrelevant.
o “No causal link between the second incident and the loss of profit suffered by the plaintiff”
o In such situation, the party who caused the first accident (D) bears full responsibility for the loss, regardless of
whether or not the second accident was caused by the owner, a third party or by no one.
- McLachlin (dissenting)
o The purpose of damages is to restore P to position he would have been in but for D’s tortious conduct.
o Where a second intervening incident necessitates repairs at the same time as repairs resulting from first
incident, a court can conlude that because the second incident would have put the ship out of commission
anyway. The person who caused the first incident is not responsible for the entire loss (ie. period of time it
would take to carry out repairs from second incident)
o Events which subsequently and independently diminish the loss caused by the first tortfeasor must be reflected
in damage awards. We have to recognize the causal contribution of the second intervening cause.
o This approach produces fairer results and it is more generally applicable.
o “It avoids intricate arguments about factors such as the order of accidents, their impact on the use of the ship,
and causation” The only question is how to best accomplish this.
o Two approaches:
 1) Full diminishment where second incident is a non-tortious case
 Discount completely the loss occasioned by non-tortious cause
 D (who caused the first incident) is responsible for only the difference
 In present case, P would recover for 13 days (27 less 14-day diminution for second incident)
 2) Pro rata apportionment
 Two causes of the detention and loss of earnings
 D is solely responsible for 13 days of grounding
 D and subsequent cause responsible for 14 days
 Divide equally – 7 days each
 D responsible for 20 days
Notes
- Applying the “but for” rule to the facts of Sunrise Co
o Why?
 Two accidents in the case are not concurrent
 But for is the traditional rule
 But for the defendant’s negligence (first accident), would the plaintiff have suffered damage (loss of
earnings for 27 days) – NO, so D is liable
 But for the second accident, would the P have suffered damage (loss of earnings for 27 days) – YES,
because of D’s negligence, so second incident is NOT a cause
- Causation is not a question of fairness, but of fact
- A finding has to be made on causation before the question of damages.
- Bottomline: first cause, full cause, full responsibility for loss

Causation 101
- 1) But for test for most cases
- 2) Material contribution for multiple tortfeasors who materially and concurrently contribute to cause on a BoP
- **when deviating from but for – use doctrinal approach – do not make up apportioning liability
- Still go through but for analysis, then introduce additional doctrinal approach
Apportionment of Loss Among Causes

Athey v Leonati (SCC, 1996)

Facts: P suffered back injuries in two successive MVAs. Soon after he experience disc herniation during a mild stretching
exercise. Herniation caused by combination of injuries from two MVAs and pre-existing condition.
Cause 1: MVAs – Tortious
Cause 2: Pre-existing condition – non-tortious
Below: TJ: Herniation caused bt a combination of MVAs (25%) and pre-existing condition (75%)
Result:
Reason:
- We will not apportion losses between tortious and non-tortious contributing causes.
- If D’s negligence is cause of injury, presence of non-tortious contributing causes will not reduce D’s liability because
this will result in P not receiving full compensation
- This case should be distinguished from other situations where apportionment is possible:
o 1) Multiple tortious causes: Each D is liable in full and can seek contribution and indemnity from one another
(Lambton; Correy)
o 2) Divisible injuries: separate and distinct injuries not true apportionment – each D liable on but for rule
o 3) Independent intervening events: non-tortious event is sequential to or occurs after tortious event
o Failing to apportion or account for IEEs in reducing D’s damages will make P’s position better than original
one (Baker)
 Responsible up to a time – responsibility gets discounted however upon circumstantial event
- Disc herniation in present case is not independent intervening event. It is the product of tortious and non-tortious
events.
- The pre-existing condition is not a sequential or IIE either
o 4) “Crumbling skull” rule
 Respondent’s strongest submission
 Applies where a “pre-existing condition is inherent in the P’s original position”
 That is, P’s original position includes the pre-existing condition which would have detrimentally
affected P anyway
 Any compensation that does not discount the future (foreseeable) measurable risk and effects of the
pre-existing condition will put P in a position better than original position
 Therefore, D’s liability ought to be reduced to account for the measurable risk of the pre-existing
condition
- However – [“Crumbling skull”] is a good argument, but does not apply because the TJ did not find that there was a
“measurable risk that [injury] would have occurred without [MVAs]”
o (Ogbogu thinks this is a cop out)

Notes
- Herniation would not have resulted but for the MVAs – necessary to establish
- SCC: Do the but for question!
- Discernable difference between thin skull rule and crumbling skull rule
o Thin skull – there is nothing wrong at the time of event.
o Crumbling skull – something wrong, event expedited the injury
- Loss of chance – Courts will not apportion losses between causes
- Wrap up:
o Where the D’s negligence aused or materially and concurrently contributed (alongside another tortious cause)
to the P’s injury, D is fully liable
o D cannot escape liability by pointing to another contributory or intervening cause (tortious or non-tortious),
unless it is a natural cause
o However, damages owed by D can be reduced where:
 The injury to P would have resulted from pre-existing condition which existed before the D’s
negligence (crumbling skull)
 A non-tortious independent intervening event occurs after the D’s negligence, which affects or
worsens P’s original position
Factual Uncertainty

Courts are unable to make a finding of fact about what actually caused the accident.
- Not a question of which cause to blame, but who or what in fact caused the accident
- Evidence is inconclusive, even scientists cannot provide answers or the events are such that we don’t know exactly
what happened.

Sindell v Abbott Laboratories (Cal SC 1980) – Do not apply, exercise to show courts made mistake
Facts: P develops cancer and pre-cancerous lesion from drug called DES ingested by mom during pregnancy to prevent
miscarriage. Drug manufactured by over 200 companies – impossible to say which one made the does ingested by
mom. Ds were six manufacturers with 90% of the market share.
Defendants moved to strike claim on the basis that P cannot prove causation.
Result Court held for P
Reason
- Where P knows the type of drug but not the manufacturer, special considerations arise
o The main bar to recovery is an old Common Law rule that says that for the burden of proof to be shifted to Ds,
all potential Ds must be before the court.
o This rule would require 194 additional defendants with a market share of 10%
o For tort law and product liability to make any sense, we need to get rid of this rule.
- Rule: if P sued enough manufacturers such that their combined market share is a substantial percentage, burden shifts
to Ds to disprove causation
o If Ds cannot disprove causation (by showing who made the DES in question), causation will be assumed to be
proportion of their market share.
- Dissent:
o Approach taken by majority to resolving this problem is not tort law
o It resembles the “deep pockets” theory of liability. But, wealth cannot be equated with causation. We cannot
have one rule for the rich, and another for the poor.
o Market share is, in fact, not a stable thing
Notes
- Ogbogu thinks causation is impossible to prove and claim should be thrown out.
- US created new rule – do not make the same mistake the courts made in this case!!!

McGhee v National Coal Board (HL, 1972) – Commonwealth Courts approach

Facts: P is covered in coal dust and sweat (non-negligently) at work. No showers provided at work, so has to ride bicycle
home to wash off dust. He developed dermatitis. Alleged negligence was employer’s failure to provide adequate
shower facilities.
Could not be determined on medical evidence if delay in washing off dust contributed to disease. All that could be said
was that exposure created risk of dermatitis. P could not proved dust was the specific cause.
Result Causation is proved
Reason
- Lords Reid and Simon: “Interference of causation”
o Where the D materially contributed to or increased the risk of the injury occurring, we can conclude that D
contributed in fact to the injury
o So P just has to prove that D increased the risk of the injury.
- Lord Wilberforce: Reverse the burden of proof
o Burden shifts to the tortfeasor who created a risk that led to the expected injury to show some other cause or
face liability
Notes
- Which opinion is better?
o Approach taken by Wilberforce makes causation a redundant in cases of factual uncertainty
o If there is factual uncertainty, P does not have to prove causation at all
o Wilberforce’s approach held sway in the Commonwealth until Wilsher v Essex Area Health Authority (HL,
1988)
- In Wilsher, HL affirmed McGhee but followed Lord Reid’s inference of causation principle
o Inference of causation can be drawn where D materially contributed to or increased risk of the injury suffered
o In case – degree of uncertainty did not permit drawing an inference of causation
- In Fairchild v Glenhaven Funeral Services (HL, 2002)
 o Where the cause of the injury (disease) is scientifically uncertain:
 P need not prove that the D’s tortious conduct caused her injury. Rather, P only has to prove that the D
materially contributed to the risk of the injury suffered by her
- Progression is not creating a new rule – still using a but for approach, but draw an inference based on material
contribution

Snell v Farrell (SCC, 1990) – proof of causation with factual uncertainty in Canada
Ratio: In cases where factual uncertainty exists, and a reverse onus cannot apply: Inference of causation – finder of fact can
take a robust and common sense view of the facts.
Facts: P was undergoing cataract surgery. Developed retrobulbar bleeding (bleeding behind eyeball, which can create pressure
behind the eyeball). Surgeon noticed outward signs of bleeding but continued with the operation. Nine months later,
when blood in vitreous chamber cleared, surgeon was able to see that optic nerve had atrophied – resulted in loss of
sight. Experts testified at trial that when such bleeding occurs, operation should be stopped (breach of SoC). But that
there are many causes for atrophied condition, including P’s comorbidities. High blood pressure and diabetes are
potential non-negligent causes. None of the experts could say what caused the atrophy – complete uncertainty.
Below: TJ applied Wilberforce in McGhee to rule in favour of P. P has shown that D’s negligence created a material risk of a
type of injury which then occurred, so burden of disproof shifts to D.
Issue: What is the correct standard of proof of causation where we have factual uncertainty?
Result The traditional test of causation (but for), although based upon common sense inferences from the evidence
Reason
Sopinka J
- Basic rule of evidence is that onus is on the party who asserts a proposition to prove it. However, where the subject
matter lies particularly within the knowledge of one party, that party may be required to prove it. However, those
circumstances don’t exist in factual uncertainty cases – no reverse onus on proof.
- The traditional test actually applies in these types of cases if you don’t apply it too rigidly.
- Causation does not require scientific certainty, just a common sense approach (McGhee application)
- A common sense approach allows courts the room to make common sense inferences, which obviates the need for
reverse onus
- The P’s evidence may be limited, but if it is consistent with our intuitions, then there is a prima facie inference of
causation
o D will need to present evidence to rebut the inference of causation
o Failure to do so will result in having the adverse inferences drawn against him
- Inference can be drawn even where scientific proof has not been adduced. Consistent with balance of probabilities
Notes
- Bottomline in Snell: Inference of causation – finder of fact can take a robust and common sense view of the facts.
o Applying rule to Snell, finder of fact drew a common sense inference by concluding that it was more likely that
the injury was a result of the negligence. It did not matter that medical evidence did not go far enough as to
support inference. It is possible to draw inference while giving due regard to available medical evidence,
especially since the medical evidence did not contradict the inference. TJ reached the right result but applied
wrong test.
o Standard of proof is not certainty, but balance of probabilities
- Ogbogu likes this – best solution to allow both sides to have an equal opportunity to assert a compelling argument
o “what we are alleging is a likely cause”
o WILL BE TESTED

Resurfice Corp v Hanke (SCC, 2007) – obiter, material contribution to the risk (confused – use Snell instead)
Facts: P is Ralph Hanke, arena operator employed by City of Edmonton. Injured in Donnan Arena when water hose was
placed into gasoline tank rather than adjacent water tank of Zamboni. Mixture of water and gasoline led to release of
vapourized gasoline into the air in the arena. Gas ignited by overhead heater, causing explosion and fire. P was severely
burned and received WCB no-fault benefits. Alberta WCB commenced subrogation action against manufacturer of ice-
resurfacing machine alleging design defects – D should not have put water tank next to gas tank. Similarity of
appearance cause confusion, which was the cause-in-fact of accident.
Below: TJ ruled cause was P’s dreadful mistake of operating machine after having observed hose in gas tank.
CA reversed
Result: SCC restored TJ based on finding of fact that the design defects did not confuse P and so did not cause his injuries.
Reason
- McLachlin (in obiter)
- Basic test is the but for test, even for multi-cause injuries.
 - Never been displaced, remains the fundamental test.
- In special circumstances a material contribution test is used instead where it is impossible for the P to prove causation
using the but for test and the D breached a duty of care owed to P, thereby exposing P to unreasonable risk of injury,
and P suffered from that injury
- Applying the but for test to deny liability would offend basic notions of fairness and justice.
Notes
- So while in Snell, the court opted for the inference of causation…
o McLachlin brought in material contribution as a way to estimate causation
o No need for an inference – causation is estimated if D materially contributed to the risk
 No – Snell was clear that you prove the D created that material risk. This is creating a
confusion.
o But is proving a contribution to risk same as proving cause of actual harm or contribution to actual harm?
 McLachlin’s obiter means that P does not have to prove causation in causes of factual uncertainty
 But merely that D contributed materially to a risk of the injury that occurred
 This is, in fact, something P has to prove under standard of care – D failed to take reasonable care
and created a risk of injury which materialized
- McLachlin’s language is confused. However, she is still getting at the rule established in Snell
o It is not about risk – it is about causation
- This is utterly confusing. Ignore Resurfice – this case is not helpful for determining factual uncertainty
o She is saying, if you create a risk, then you are responsible. Skipping the step that 1) if you create the risk, and
2) that the P must prove that it is a likely cause.

Clements v Clements (SCC, 2012) – McLachlin clarifying reasoning in Resurfice

Facts: Ms. Clements was riding pillion on a motorcycle driven by husband Mr. Clements. Motorcycle 100 pounds overloaded
(negligent act). Nail punctured rear tire. When D accelerated to pass another vehicle, nail fell out, tire deflated rapidly,
and motorcycle began to wobble. Mr. Clements was able to slow down, but not enough to regain control or to permit
him and Ms. Clements to get off without significant injury. Motorcycle crashed and Ms. C was thrown off. Ms. C
sustained severe traumatic brain injuries. Sues, through litigation guardian. Mr. Clements did not dispute he was
negligent driving an overloaded bike too fast.
Below: TJ invoked material contribution test as stated by McLachlin in Resurfice. Impossible for P to prove causation on but
for test, and D materially contributed to P’s injury.
CA reversed on basis that “but for” test not satisfied – material contribution did not apply.
Issue: Whether his negligence caused Ms. C’s injury/tire puncture and deflation
Result New trial ordered
Reason
SCC (McLachlin)
- Basic rule is “but for” test – scientific proof or precision not required – TJ can take robust and pragmatic view of the
facts (Snell application)
- As an exception, P may succeed by showing D’s conduct materially contributed to risk of P’s injury
- But there is need to flesh out the “impossibility” criterion for the latter rule.
- Material contribution rule applies where:
o P has established that her injury would not have occurred “but for” the negligence of two or more tortfeasors
o Each possibly in fact responsible for the injury, and
o P is unable to show, through no fault of hers, that any of them is the “but for” cause
- TJ committed two errors:
o Required scientific proof of “but for” causation
o Essentially followed the obiter in Resurfice by applying material contribution to risk test in a case that was
distinguishable from the fact patter n to which the obiter ought to apply
Notes
- This is the material contribution test as we know it. She overrules herself in Resurfice
- Two rules: 1) but for test modified for Snell in factual uncertainty cases and 2) material contribution (two or more Ds)
and the two or more have a hand in the cause.
o In essence, back to the two-part test – “but for” and material contribution test.

Exam Application for Causation

- What kind of causation is this? Multiple causes, sequential, etc.?

1) Begin with or use the “but for” test (Barnett, Clements)

 - Unless case involves joint tortfeasors or multiple causes contributing to P’s harm

2) If multiple tortfeasors, still start with “but for” and conclude it is convoluted, use material contribution test (Corey)
- Each is liable in full
- Can sue all of them together and recover (Clements)

3) If one cause is negligent and the other is natural cause, no causation (Kingston)

4) If first cause is negligent and responsible for full loss, second subsequent cause (whether tortious or not) is irrelevant
(Sunrise Co)
- First D is fully liable, no apportionment

5) If first cause remains concurrent cause together with a second tortious intervening cause, first D remains liable for losses
linked to her negligence (Baker)
- Personal injury cases

6) If one cause is negligent and the other is non-tortious, negligent D is fully liable (Athey)
- No apportionment

7) If there is factual uncertainty, and one of the possible causes is negligent, an inference of causation can be drawn that the
alleged negligence caused the actual harm by taking a robust and pragmatic view of the facts (Snell, Clements, Lord Reid in
McGhee)

8) If multiple causes, all negligent, assess multiple contribution to risk of injury

Causation:
- Plaintiff proves
- Not the defendant
- P’s actions not assessed in the inquiry
o Wait for contributory negligence to discuss P’s actions
- Either the D caused it or did not cause it
-
REMOTENESS

Remoteness inquiry:
- ASSUMING a duty of care owed, and that the duty was BREACHED (i.e. breach of standard of care);
- Was the resulting injury (or the mechanism by which it occurred) a natural or sufficiently direct consequence of the
negligent act?

Assuming:
- That the P is someone foreseeably affected by the D’s negligence
- That the P’s relationship with the D is sufficiently close and direct
- Is the specific injury suffered by the P foreseeable?

General thoughts on remoteness

- Courts have resorted to all sorts of tests to resolve remoteness problems
- Because no single concept appears sufficient to resolve myriad of difficult factual situations
- Decisions based on a blend of common sense, pragmatism and judicial policy regarding fairness

Duty and remoteness overlap (share concept of foreseeability):

Duty: Remoteness:
Focused (in part) with whether any type of injury to a Focused on whether the type of injury actually sustained by
particular person is foreseeable plaintiff is foreseeable
- Foreseeability of harm, not foreseeability of the - Foreseeability of specific harm suffered by P
actual harm arising fom the facts - Harm in an actual sense
- Harm in an abstract sense - Not a freak event

To satisfy remoteness, must the P show that the type of damage suffered is foreseeable consequence of the negligent act?
- OR is it enough to show that some kind of injury was foreseeable, and that as a result, D should be liable for any injury
that results.

Re Polemis (ECA, 1921) – Do not apply (WRONG)

Facts: D chartered ship from P for use in transporting petrol. Due to rough conditions some petrol leaked and filled ship hold
with petrol vapour. Stevedores employed by D dropped a plank into the hold. This caused a spark, which caused a fire,
which destroyed the ship.
Arbitrators: Stevedores acted negligentlt, but D contended the damage to the ship was too remote. That is, this kind of
damage was not foreseeable.
Result
Reason
- As long as some kind of injury was a foreseeable result of the negligent act, D is liable for any kind of injury that
results.
o Weird rule – Court trying to find liability
- The fact that the damage caused is different than expected is immaterial
- Rule:
o If a RP can foresee that an act would cause damage, and the damage caused is directly traceable to the
negligent act, it does not matter that it is not the exact kind of damage expected.
o WRONG – this is not remoteness
Notes
- Correct rule: is the harm (actually) suffered foreseeable? Wagon Mound

Wagon Mound (No 1) (PC, 1961)

Ratio: Correct Remoteness Inquiry: damage suffered by the P must be of a kind that is reasonably foreseeable.
Facts: P, wharf owners, are carrying on welding operations. D, an oil-burning vessel, leaks oil due to shipowner’s negligence.
Through discussions, everyone agrees oil cannot be lit on fire on water surface, so P (manager) keeps on welding.
Some molten metal, wood and cotton cause a fire which destroys dock and several ships. P and D agree this was not
foreseeable, however, P suffered some other foreseeable damage, such as congealment of spilled oil on slipways.
Issue: Was this type of damage remote and what is the proper test for remoteness?
Result Foreseeability is the test for remoteness. Re Polemis is overruled.
Analysis
 - Do we ask whether the fouling and congealment was:
o A) directly traceable to the oil leakage; OR
o B) a reasonably foreseeable consequence of the oil leakage
- “The essential factor in determining liability is whether the damage is of such kind as the reasonable man should have
foreseen”
o Damage suffered by the P must be of a kind that is reasonably foreseeable
o Under Re Polemis, negligent actor is held liable for “all consequences, however unforeseeable” as long as
direct (traceable to) negligent act
Notes
- If applying Re Polemis – any damage is directly traceable, and the defendant would be responsible for any harm that
occurred.
o Not how the law is supposed to work.
- It does not seem consonant with…justice or morality that, for an act of negligence…which results in some…
foreseeable damage, the actor should be liable for all consequences, however unforeseeable…so long as they can be
said to be direct”
o Argument against Re Polemis
- Argument: it is unfair, such a freak loss that no one should be liable for such damages. Draw the line where you see fit.
- Aside: Mechanics of the accident (Civil procedure and framing arguments)
o Example: A did not shovel sidewalk. B slips, knocks over C and injures C.
 The more you tell about a story, the more it seems unforeseeable. Framing the argument broadly likely
results in a viewing that the accident was a freak event.
 If you frame the facts narrowly, and build less facts into the argument, less likelihood of viewing the
accident as a freak event.

Mustapha v Culligan (SCC, 2008)

Facts: P, Waddah Mustapha, saw a dead fly in an unopened bottle of water supplied by Culligan. Neither he not his family
members consumed water, although all members of his family had consumed D’s water for past 15 years. Mustapha
became obsessed with what he had seen and with potential implications of past consumption for his family’s health. He
was diagnosed with major depressive disorder, with associated phobia and anxiety. He could not get the fly in the bottle
out of his mind, he had nightmares. Unable to drink water, lost sense of humour, constipated, sexually frustrated, lost
clients at work due to change in mood.
Below: TJ said “objectively bizarre” reaction. But “clearly foreseeable” that supply of water with dead flies would cause P to
suffer some degree of nervous shock. Awarded damages for past and future damages + past and future economic loss.
CA: “…whether a D may be liable for damages for psychiatric harm where the harm, by any objective measurement,
consists of an exaggerated reaction by an obsessive person of particular sensibilities to… a relatively minor or trivial
incident”
Issue Was this type of remoteness enough to shed liability?
Result
Reason
- Culligan owed Mustapha a duty of care. Standard of care breached.
- But were the P’s damages too remote to warrant recovery?
o Per WM #1: was the actual harm reasonably foreseeable?
 No person of ordinary fortitude would have foreseeably suffered this kind of injury from seeing flies
in an unopened bottle of water
Notes
- Ogbogu would not have worded the way CofA did… shows unawareness and lack of empathy for mental health issues
- Hypothetical: But what if Mustapha had been diagnosed with and was being treated for sever OCD prior to incident?
o Even if vulnerable, still too remote.
- Hypothetical: Your negligence results in a weight that won’t hurt a fly being dropped on me. Turns out I am an acute
hemophiliac and I suffer massive and severe internal injuries.
o Even less foreseeable.
o Should not matter – too remote if we follow Mustapha
o In these kinds of cases – Courts allow recovery through the thin skull rule. P’s vulnerabilities will not be an
avenue for the D to shed liability.
- Consider the following rules then:
 o The D is liable where the P is unusually or uniquely prone to an unusual or unpredictable degree of injury
as a result of the D’s negligent act
o If D’s negligence injures a plaintiff with a unique or unusual predisposition to unforeseeable harm, the D is
liable.

Smith v Leech, Brain and Co (QB, 1962) – thin skull

Facts: Workers at D’s plant must dip stuff into a molten metal bath from behind a small metal corrugated shield. D’s
employee is splashed on the lip, resulting in a bad burn. Burn becomes malignant, and he dies of cancer some years
later. Deceased employee was suffering from “pre-malignant changes” prior to incident due to nature of his job – burn
was a promoting agent. Family sued. We have a physiological vulnerability or predisposition to injury (cancer, not
burn). But cancer (and death) not really foreseeable as no defendant would have been aware of vulnerability or
predisposition to cancer.
Issue Is this specific type of injury (cancer/death) foreseeable?
Is it foreseeable that a small splash would cause a burn that would in turn cause a lethal cancer (and death)?
Result WM #1 does not apply to this type of fact pattern
Reason
Lord Parker CJ:
- WM #1 did not address thin skull cases
- Thin skull rule:
o “A tortfeasor takes his victim as he finds her/him”
- It is no answer to negligence to say that the plaintiff:
o Would have suffered less injury (degree) or no injury at all (type)
o If the plaintiff did not have a “thin skull”i.e. a vulnerability or predisposition that led to the degree or type of
injury suffered (will not blame the victim)
o Nagging problem: the cancer and death are clearly not foreseeable – whether viewed as specific types of injury
or degrees of injury arising from burn
- “The test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that Mr.
Smith would die”
- “The question is whether these Ds could reasonably foresee the type of injury which he suffered, namely the burn”
- “What, in the particular case, is the amount of damages which he suffers as a result of that burn, depends on the
characteristics and constitution of the victim”
- Burn was foreseeable. That is all the matters. The extent of the injury caused by the burn is irrelevant… particularly so
where the P’s vulnerability or predisposition led to that degree of injury
- The rule then is:
o If the threshold injury is foreseeable, injuries that flow from it are irrelevant BUT ONLY as applies to
thin skull plaintiffs
Notes
- In essence – remoteness does not apply to thin skull cases
o The case turns on the P being able to show they were especially vulnerable
o Re Polemis is applied for thin skull cases
- Mustapha:
o “Once a P has established the foreseeability of a mental injury would occur in a person of ordinary fortitude…
the defendant must take the P as it finds him for the purposes of damages.”
 Not a general rule
 If initial injury to P is foreseeable, D is liable for linked injuries that only arose because P has a thin
skull, regardless of foreseeability
- Queries
o 1) Is the think skull rule too harsh on defendants?
 The ultimate consequence suffered by Smith (death) is disproportionate to threshold injury (burn)
o 2) What do you make of reduction of damages in Smith because deceased “might have developed cancer
without burn”?
o 3) Should the thin skull rule apply to cases where a plaintiff with depression prior to negligent act commits
suicide because unable to accept the threshold injury caused by negligent act?

Cotic v Gray (ONCA 1981) – mental health and thin skull

Facts: P, a man with history of mental problems, committed suicide after surviving car crash. His mental condition
deteriorated after crash because of guilt feelings over death of negligent driver and of his son. Wife of P brought suit.
Result Thin skull rule applies – P can recover
Note
- As a general rule, suicide by a normal and healthy individual would be an unforeseeable intervening act distinct from
negligent act
- In Cotic, suicide is a result of a predisposition to depression and flows from threshold injury
- Wright Estate v Davidson (1992):
o As a general rule, a victum who suffers aggravated damage because of a physical or mental precondition will
always recover, and his extended injuries will never be too remote, because the possibility of a predisposition
to injury is foreseeable as a class of harm.
o …the extent of injury need not be foreseen, only the type of injury
o This is a restatement of the thin skull rule
Novus Actus Interveniens

What if following D’s negligent act, but before P suffers actual damage, something or someone triggers or worsens the P’s
damage?
- Novus actus interveniens – new act intervenes – new intervening act

- A new act which intervenes between D’s negligence and P’s injury
o COMPLETE DEFENCE
o Test is reasonable foreseeability

- If intervening act is within the scope of foreseeable risk created by original D’s negligence, that D is still liable
o The more culpable the intervening act is, the more likely it is to be deemed unforeseeable

Bradford v Kanellos (SCC 1973)

Facts: Gas grill in D’s restaurant caught fire. Extinguishers activated, producing a hissing sound. A patron heard hissing sound
and yelled “Gas, there’s going to be an explosion!” Panic ensues and P is pushed or fell from her seat and was injured.
D argued that there may have been negligence with respect to cleanliness of grill. But actions of hysterical third party
were novus actus.
Trial court held for P  third party’s actions were foreseeable. Natural consequence of an emergency
CA reversed  third party’s actions were novus actus – broke chain of causation. D could not have foreseen
intervening acts.
Issue Whether the actions of the hysterical restaurant patrons a novus actus?
Result
Reason
- Injuries not caused by D’s negligent act, but by hysterical patron
- Not reasonably foreseeable, especially since hysterics resulted from proper functioning of fire equipment, not the fire
Notes
Laskin J dissent
- It was reasonably foreseeable that stampede could happen if visible gas grill caught fire and extinguisher went into
operation
- Even if patron acted negligently (and not clear that he did), injury to P still foreseeable
- Reaction to hissing sound and gas grill on fire was natural/probable/ordinary consequence of original negligent act
- BOTTOM LINE = reasonable foreseeability is everywhere
o Characterization matters in remoteness/NAI analysis
DEFENCES

What actions of the P might disqualify or limit her recovery?

Defences:
1) Contributory Negligence
2) Voluntary assumption of risk
3) Illegality

1) Contributory negligence
- P’s failure to take reasonable care for her own safety which contributes to her loss/damage
- Partial defence
- D remains liable
- Absolves D of liability to the extent of P’s contribution

Statute – Contributory Negligence Act

Apportionment of liability – s 1
o When by fault of 2 or more persons damage or loss is caused is in proportion to the degree in which each
person was at fault
o But if, having regard to all the circumstances of the case, it is not possible to establish different degrees of
fault, the liability shall be apportioned equally

2) Voluntary Assumption of Risk

- P is taken to have consented to the risk of harm generated by D’s negligence
- Volenti – consented to risk of harm (both legal and physical)
- Example: getting in a car with a person drinking at the wheel
o Contributory negligence – partial defence
o Volenti – full defence

3) Illegality
- Ex turpi causa non oritur action: “out of a base [immoral, illegal] cause, no action can arise”
- P engaged in illegal conduct in the course of suffering damage should not be permitted to recover
- Example: you break into someone’s house, then fall down a flight of stairs in state of disrepair
o Complete defence

Contributory Negligence

Butterfield v Forrester (KB 1809)

Facts: D obstructed highway with a pole while making repairs to his home. P left the public house at dusk, on his horse which
he was riding “violently”. Struck the obstruction, was thrown from his horse and was seriously injured. Witness said he
would have seen obstruction if riding slower. Witness said he would have seen obstruction if riding slower.
TJ instructed jury that if P could have avoided the obstruction by taking reasonable care, they should find for D.
Issue Was this instruction correct?
Result
Reason
- Bayley J: Yes – instruction correct. P was riding too fast and he would not have been hurt if he employed ordinary care.
- Lord Ellenborough: P should not be able to take advantage of another’s fault if he fails to use ordinary care.
Notes
- Complete defence approach no longer the case
- Liability is apportioned

Davis v Mann (Exch 1842)

Facts: D “driving at a smartish pace” negligently ran over and killed P’s donkey. Argued that P was also negligent for tying
the donkey facing the highway with forefeet “fettered”.
Issue Contributory negligence?
Result Court held not contributory negligence because: D could have avoided injuring the donkey if he had exercised “proper
care”
Reason
- Parke B: “Although the ass may have been wrongfully there, still the D was bound to take actions to prevent mischief.”
- Donkey did not cause injury – D’s negligent driving did
- To be contributorily negligent, P’s negligence must contribute to the injury, not merely the accident. D could have
avoided injuring the donkey if he had exercised “proper care”
Notes
- Section 3.1: Last clear chance rule
o This Act applies if damage is caused or contributed to by the act or omission of a person, whether or not
another person had the opportunity of avoiding the consequence of that act or omission and failed to do so.

Froome v Butcher (ECA, 1975)

Facts P was driving at speed limit, but not wearing seatbelt. Head on collision with D, who was passing illegally. P suffered
injuries to his ribs, and a broken finger. Finger injury could not have been prevented by wearing seatbelt. P testified he
did not wear seatbelt because he thought he was better served by being thrown from car. Not necessary if you are
driving in cood conditions below speed limit
TJ awarded 450 pds, and would have reduced award by 10% if required to do so.
P argued that D caused the accident, not his failure to wear seatbelt.
Issue Should damage be reduced for failing to wear seat belt?
Result
Notes
- Question is not what caused the accident, but what caused the damage: Both the accident and failure to wear seatbelt
caused the damage
- Not a criminal offence to fail to wear seatbelt.
o No. criminal liability does not amount to immunity to civil liability
- Personal autonomy? IF I honestly believe it is safer to not wear a seatbelt, why should the law interfere?
o Standard of care is not subjective, but objective.
- Forgetfulness?
o Sorry. Too bad. Also negligence
o Wearing a seatbelt is sensible thing to do.
- What share of liability should fall to the plaintiff?
o If failure to wear a seat belt made no difference, no contribution, no reduction of damages
o If failure made all the difference, then 25% reduction
o If failure made considerable difference, then 15% reduction
- In Canadian seat belt cases, courts all over the map. Failure to wear seat belt generally unreasonable, but sometimes
accept flimsy excuses that run counter to Froome
o Eg. “it was a fine day” “I am cautious” “I thought it would affect me” “The belt was uncomfortable”
o Question: should a legislative requirement to wear seatbelts be determinative in such cases?

Voluntary Assumption of Risk

- Arises where P is taken to have consented to risk of harm generated by D’s negligence
o Used to be a very broad defence
o Merely exposing onself to a known risk of another’s negligence was enough
 Now more restricted and difficult to establish

- SCC: D must prove an agreement, whether express or by implication, whereby P has consented to accept both the
physical and legal risk of the injury from D’s negligence

Dube v Labar (SCC 1986)

Facts: P and D, friends, were on all day binge drinking. Driving back from Whitehorse, they stop to pick up hitchhikers and
car stalls. P driving, D passenger. After brief exchange, P and D switch places, car flips, P is injured, so sues D. D
argued volenti, among other things.
Jury accepted defence, Yukon CA upheld.
Issue: Is the defence of voluntary assumption of risk valid in the circumstances?
Result: SCC upheld jury verdict, but restricted scope of volenti defence.
Reason
 - D must show that P, knowing of the virtual/certain risk of harm (knowledge of physical risk)
- Bargained away her legal right to sue for injuries incurred as a result of D’s negligence (knowledge of legal risk)
- Acceptance of risk may be express or implied from the conduct of the parties
- But requires understanding on part of both parties that D assumed no responsibility for P and P agreed to this
- Volenti applicable in most drunken driver/willing passenger cases?  Lack of awareness
- Contributory negligence is still an option
Notes

Crocker v Sundance Northwest Resorts Ltd (SCC 1988)

Facts: Grossly intoxicated P participated in inner tube race down a mogul run on a ski hill. Seriously injured. Ignored advice
from D to withdraw from race. D argued volenti.
Issue Volenti applicable in the circumstance?
Result No volenti, but 25% contributory negligence.
Reason
- Given P’s level of intoxication, he could not have appreciated and accepted physical and legal risk of injury

Waivers and Volenti

- Frequently used in commercial, sporting and recreational events
- As a lawyer, responsibility to make sure your client has an air-tight waiver
- Validity determined by applying the law of contracts
- Not enforceable unless reasonable notice was given to P’s in terms of its waiver
Issue: Irrespective of a waiver’s significance in contract law, does it lend support to a volenti defence?
- In Crocker, SCC refused to enforce waiver
o Because P did not read it and thought it was just part of form to enter race
- But see Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985)
o P, snowmobiler crashed his machine at a race sponsored by D
o Signed waiver gave rise to volenti defence
- How do we reconcile both cases?
o P in Dyck had read waiver and had better understanding of its terms.
o But did he have a clear understanding of what the waiver really meant?
o Really need your clients to know that they must make it clear
- Bottomline: For a waiver to apply, there must be reasonable notice and clear understanding (and acceptance)
of its terms

Lambert v Lastoplex (SCC, 1971) [Labelling]

Facts: P, an engineer, was using a special fast-drying lacquer to seal the floors of the basement. Furnace, in adjacent room,
had pilot light. Lacquer + pilot light = fire. P tried to exit but explosion caused burns and property damage. Lacquer
came with warning label that substance should be kept away from open flames and high heat. But was it adequate? It
was very general, and court held that was not sufficient. Competing product had much more specific warning. Risk of
explosion/fire from pilot light and light switches.
Below: TJ held P – no volenti or contrib.
CA held for D – volenti
Issue: Is the warning on a product label sufficient to allow a manufacturer to say that user voluntarily accepted the physical
and legal risks of product?
Result Held for P – full recovery
Reason
- Judgment principally focused on duty to warn. Duty requires explicit disclosure from manufacturer
- Because of failure to warn, D cannot argue volenti. That is, D had to prove that P appreciated the (legal and physical)
risk of leaving pilot light on, and willingly took that risk)
- Without proper warning, knowledge of that risk cannot be established. No proper warning or failure to warn, so no
volenti
- No contributory negligence either, even though P had some specific knowledge, at least in general terms, of inherent
dangers
Notes
 - Waiver must cover terms of the risk – full proof – must cover all aspects of risk
- Manufacturers have a duty to warn consumers of dangers inherent in use of their products
- Applicable standard of care is to take reasonable steps to provide warnings that allow product to be used safely
- Nature and extent of warning required depends mainly upon nature and degree of danger posed by product –
whatever the danger is you think.
Illegality

- Like volenti, but restricted considerably

- Ex turpi causa non oritur actio  “out of a base [immoral, illegal] cause, no action can arise”
- Plaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recover
- Complete defence

Hall v Herbert (SCC 1993)

Facts: P and D, young gentlemen, spend the evening drinking too much, including in a field, into early hours of the morning
(drinking in a field is illegal). They then take a drive in a “Souped-up muscle car” down road that was so bumpy that
the keys fell out of the ignition. D turned car around and suggested that they do a “rolling start”. P asked if he could
drive; D says sure. P tries to jump start vehicle but gives it too much gas. Car goes off the road into a gravel pit, landing
upside down. P sustains significant head injuries; sues D alleging various acts of negligence. D argues ex turpi –
accident happened in the course of committing illegal act.
Below: TJ: ex turpi does not apply.
o Only crime jointly committed was drinking in a public place, and that was not causative of damage
o But it is defence of illegality, not criminality
o What matters is what P was doing at the time of damage
o P was operating vehicle under the influence of alcohol
CA: Ex turpi applies.
Issue: How does the illegality affect liability?
Result: SCC reversed and severly restricted doctrine.
Reason:
Cory J
- Focuses on second arm of Anns test – question best dealt with as part of public policy inquiry
- Should be dealt with under Duty of Care analysis
- Public policy does not bar the plaintiff’s recovery
o What?
- Permitting his recovery would not shock the conscience of right-thinking members of society fully apprised of facts!
o Ogbogu: Who are these right-thinking members of society that will think it is okay?
- “[T]he doctrine of ex turpi causa should be eliminated from application to tort cases”
o Rather: Illegality should be just another factor examined under the second branch of Anns
- Ask: As a matter of public policy, should the illegality of the P’s conduct disentitle him or her from recovery?
o In case at bar, no
McLachlin J (MAJORITY)
- Illegality should work as a defence as long as P is seeking compensatory damages (outside of exceptions below)
- Used to be based on intention to prevent a person from profiting from his/her wrong
- IF this is a basis of the rule, then it should have little impact on tort law, because tort law is compensatory
o To be contrasted to windfall or profit (ie. exemplary or punitive damages)
 Don’t want people to profit beyond how they were damaged.
 So, the plaintiff could recover compensatory damages
- Few classic exceptions:
o 1) Claim for damages for lost earnings based on illegal profession or activity (burglar/bookie, etc.)
o 2) Bar to recovery where a claim for exemplary damages might otherwise be granted – no windfall
damages
- No role for ex turpi besides these exceptions
- Claim in Tort law is generally not a claim to a profit, rather for compensation – aims to restore P to original
position
 - Traditional rationale – to prevent persons from profiting from wrong (murderer collecting on life insurance). If
this is the basis of the rule, then it does not apply to tort law because tort law is compensatory
o Therefore, defence of illegality can be used to bar windfall damages
- Profit as a term is too ambiguous
- Better explanation is that doctrine would apply where allowing recovery would introduce inconsistency in tort law
- Law must aspire to be unified, coherent, with all parts in harmony
o This need for internal coherence demands a bar to recovery for that which is illegal
o That is, for that which violates another part of the law
o This is why tort law allows a defence of illegality – to protect the legal system from incoherence
o For example, P caught committing burglary due to negligence of fellow criminal cannot successfully
recover cost of imposed fine.
o Because this allows criminal P to off-load punishment that society has deemed he should receive
o What type of analysis will achieve the purpose of protecting the legal system from incoherence?

Cory J: matter of public policy determined in the duty inquired per Anns
- McLachlin disagrees, for three main reasons:
- 1) Duty is about relationship between P and D, and is predicated on foreseeability, not morality of P’s conduct.
Defendant’s character is irrelevant; Plaintiff’s character is (who could be injured by defendant’s actions).
o Illegality is best viewed as a defence rather than a matter of duty of care
o Although P has established a cause of action in negligence. D’s responsibility for the wrong is suspended
o Because of concerns for the integrity of the legal system
- 2) Dealing with illegality at duty stage creates new problems
o Burden of proof – if illegality goes to duty, then P will have to disprove the illegality
o Duty is all or nothing, which means all of P’s claims would be wiped out
o If defence, properly understood, it can be applied to certain heads of damage, such as profits from
illegality
o While not affecting compensatory damages
- 3) Under contract, D has to prove illegality
o Would be ironic to impose burden on D for a breach of contract part of the case;
o While imposing the burden on P in tort portion of case.
o In present case, P is seeking only compensatory damages
o Not seeking to profit from wrong, so no possibility of incoherence in the law
o Trial judgment upheld

Notes
- Ultimately, neither approach is great
- Say there is a sexual assault, and criminal contracts HIV from the victim…what do you do.
- What if criminal sues the victim?
- Obviously should not be successful, but to allow
- So, ex turpi does not generally apply to tort law, save where P is seeking to profit from illegal activity
- How about the following cases?
- Burglar who falls down stairs in state of negligent disrepair
- Murderer, fleeing from police, slips on icy sidewalk
o Should we let criminals claim assistance from Tort law?
- Murderer who sues manufacturer or murder weapon for defect that injured him in the course of committing
offence
- Seems like more sympathy for the two murderers? Because anyone could have slipped on ice or misfired?
- Notes (McLachlin)
o 1) Damages linked directly to illegality
 o 2) Windfall – damages beyond to return you to original position (aggravated damages) (punitive –
punishment)
Examples (using McLachlin judgment):
- Murderer, fleeing from police, slips on icy sidewalk
o McLachlin says yes – compensatory damages apply
- Murderer who sues manufacturer of murder weapon for defect that injured him in the course of committing
offence
o McLachlin says yes – compensatory damages apply

Limitations Act – expiry of limitation period (another defence as defendant)

- More in Civ Pro
o P must bring action within specified time limits
o Otherwise, the action has expired.
o Generally, 2 years from time P knew or ought to have known of claim
o Discovery Rule
o OR 10 years from when claim arose (whichever expires first)
o Time stops for P under disability – functional disability, dependent adult, minor not under actual custody
o Fraudulent concealment may stop clock
- Rationale:
o Fairness to D
o Witness memory
DAMAGES

PECUNIARY LOSS

Negligence requires proof of actual damage

- Unlike some torts, which are actionable without proof of damage (eg. Trespass)

- Arises mainly in personal injury cases

- Liability will be admitted in vast majority of cases – only question is what is claim worth?
- Point of tort law is to compensate plaintiff – restore him/her to pre-accident position (status quo)
- Law allows for punitive and aggravated damages
o Aggravated damages are compensatory
o Ex. For humiliation, embarrassment or distress caused by nature and gravity of D’s wrongdoing

- Punitive or exemplary damages are awarded where D’s conduct is so outrageous, vicious, malicious or despicable such
that it warrants a severe reprimand.
o Ex. Intentional injury
o Viewed as exception to compensatory norm
- Restoration to status quo impossible in personal injury cases
o Best the law can do is to provide, to the extent possible monetary compensation as substitute for status quo

Damages for wrongful death

- Spouse or children of deceased victim sue for support
- No common law cause of action
- Provinces have adopted fatal accidents legislation
o Confers on surviving spouses and children (and in some cases, parents) right to sue for losses arising from
wrongful death of relative
o Fatal Accidents Act, Family Compensation Act

Damages to property
- Chattel
o If altered or no longer available (eg. Lost, damaged, destroyed), measure of damages is the value… but what is
the value?
o Destroyed chattel – purchase price or depreciated value?
o Because tort law seeks to return P to status quo or pre-accident position, value may reflect measure of
depreciation
o Value is therefore market value at time of accident
o Damaged chattel – measure of damages is diminution in value

Pecuniary – I don’t fucking know

- Encompasses various costs associated with treatment or care that are yet to be incurred
- Nursing, personal attended services, user fees, home or automobile modification, drugs, transportation to treatment,
prosthetics,
- Anything arising from treating the injury or associated with an ongoing disability
- Probably the most important head of damage for Ps
- Courts typically most generous on this one

Ex: Future costs of home care - $4135/month

- Only alternative is institutional care, assessed at $1000 per month
- TJ awarded home care; CA awarded institutional care; SCC awarded home care
-

Loss of earning capacity

- But for the accident, what sort of career would Mr. Andrews have had?
 - Not same as past income loss – no extrapoliation from PIL
- Not same as present earnings – head looks at los of earning capacity
- Loss capacity is a capital asset
o What is the capacity/asset worth?
o Conceivalby worth more than present earnings
o Court adopted valuation based on current line of work
o No consideration of possibility of educational advancement
o Rather SCC focused on his current work and mid-range salary in assessing earning capacity
Methodology:
1) estimate P’s future earnings, then deduct from it the amount that the P is still capable of earning
- =Zero (P not capable of earning anymore)
- Trial award:
o He was earning $830 per month as apprentice for CN
o Maximum for that line of work was $1750
o CA/SCC = $1200  conservative but reasonable, gross income
2) determined the length of time over which the P would have earned income
- Andrews could have retired at 55 with a full pension (why not 65?)
- Why use expected working life span (55) rather than reduced post-accident life expectancy (45)?
o Lost capital asset is capacity prior to accident, not post-accident
- What is the P’s working life expectancy over the period between age 23 and 55?
o 30.81 years
3) apply contingencies
- Income level is set ($1200), and the time level is set (30.81)
- Now deduct contingencies such as “unemployment, illness, accidents and business depression”
- SCC sticks with conventional 20%
- Today, courts will look at positives as well – promotion, salary increases, possibility of earned income beyond
retirement age, etc.
4) apply capitalization for return on investment (same as in cost of future care)

Two additional heads of pecuniary damages courts have recognized

1) Loss of capacity to carry out homemaking services

- P, prior to injury, was a stay-at-home spouse, or single
- Calculated on the basis of the cost of replacement homemaking services

2) Diminished ability to establish a permanent relationship with another person

- P is catastrophically injured or disfigured or has suffered a head injury or some other type of injury
- Which reduces the likelihood of being able to establish a permanent relationship with another person
- Because two persons can live together more cost-effectively than separate
- And P has lost some degree the opportunity to realize those savings
NON-PECUNIARY LOSS

- Not easy to determine the “quantum” (appropriate amount) of damages

o No objective market value or non-pecuniary loss
o Courts ascribe a value anyways
o Money does not provide true restitution
- If nothing of market value has been lost, then question is what artificial value has been lost, then question is what
artificial value to ascribe to loss
o Area characterized by judicial concern for overcompensation
o In Andrews, Dickson CJ notes wildly extravagant awards in the US. But are they really?
o Oddballl jury awards – infrequent
 Often reduced on appeal
 Mainly punitive damages, which are tightly controlled by Canadian courts (rarely exceed $100,000)

- Dickson CJ’s approach in Andrews: place a CAP on non-pecuniary awards

o Uninformed judgment?
o Non-pec awards have a functional basis – to provide solace for P’s non-pec damages
o Ogbogu does not think the cap is fair

Andrews Facts: Mr. Andrews is mentally alert but catastrophically injured young man. This is as bad as it gets. But actually
worse than being a vegetable, as he is aware of his pathetic circumstances. As such, he needs solace for his injuries. But the
award cannot be limitless or overcompensate.

- Is the cap a bad idea?

In AB, non-pec damages have been limited by statute in certain circumstances

- Minor Injury Regulation, Reg 123/2004
o Minor injures (sprain, strain or whiplash injury that does not result in serious impairment)
o Capped at $4000 (adjusted for inflation from 2007)
o Currently at $5296
- Constitutionally on minory injury cap was challeneged in Morrow v Zhang
o P, diagnosed with grade 2 whiplash following MVA, would have received non-pecs in excess of cap
o TJ ruled that “minor injuries” distinction was based on a personal characteristic
o Amounted to discrimination of grounds of physical disability in violation of s 15 of the Charter
o ABCA reversed
- Interesting observations about non-pec awards
o Juries (rare in AB, more common in BC and ON) award less than judges for relatively minor injuries (eg.
Whiplash on MVAs)
o But award more, sometimes above the cap, in cases of catastrophic injuries
 CofA reduced award to CAP on appeal

General Rule (Canadian Courts)

- P is entitled to full compensation, but no more. No double recovery. No windfall.
o Private insurance exception
o If P paid out of pocket for the collateral benefit, then value of benefit should not be deducted
o P is entitled to full recovery of damages from D + full value of collateral benefits funded out of pocket
- Does the exception extend to employer-paid insurance?
o Where P notionally paid for it as it is part of an agreed compensation package (Ratych)

Ratych v Bloomer (SCC 1990)

Facts: Police office injured in MVA due to D’s negligence. Continued to receive full salary while off work for several months
pursuant to terms of collective agreement. Also, did not lose any accumulated “sick credits”.
Issue Should employment benefits be taken into accound in assessing damages for loss of earnings?
Result SCC said deduct employment benefits to avoid double recovery
Reason
- Measure of damages should be “actual loss”
 - Private insurance exception does not apply absent evidence that employee contributed to the fund from which benefits
were paid
Notes
- Compare with Cunningham v Wheeler: P received disability benefits from employer under terms of collective
agreement
o No deduction from his pay for disability benefits
o TJ accepted evidence that collateral benefits was an important aspect of collective agreement negotiations
o If benefits increased, hourly wage goes down and vice versa
o Held: No deduction as benefits fall within private insurance exception.
 Some consideration was given up by employee in return for the collateral benefit
 Bargaining trade-offs between wages and benefits constituted such consideration
- Other kinds of consideration:
o Direct contribution by employee
o P gives up some money in return for benefit
o Benefit is part of employee’s work package/wages – employee worked for it

- Trial courts often deduct if there is the slightest evidence of some consideration or contribution from employee
- S 570(3)(4) Awards must be reduced by aggregate of (inter alia):
o Certain no-fault benefits under a vehicle insurance contract
o Alberta Health Care Insurance benefits
o Prescribed income continuation or replacement benefits
o Disability pension benefits
o Worker’s compensation benefits
o Important: Net of tax, contributions and premiums paid by employee

Lump sum or periodic payments?

- Issue: should damage awards be paid by D as a lump sum or periodically, as it is incurred?
o At common law, damage awards must be single limp sum
o Advantages of periodic payments: adjustable to contingencies; removes guesswork; avoids overcompensation
o Disadvantages: administrative costs; lack of finality/certainty
- SCC rejected periodic payments and ruled in favour of lump sums
o A matter for the legislature, not courts
o ON, MB, and BC have enacted legislation providing for periodic payment alternative

Young Plaintiffs:
- Andrews formula particularly difficult to apply to young plaintiffs, especially as relates to lost earning capacity.
- Typically do not show aptitudes that allow us to assess that head of damage.
- Arnold v Teno (SCC, 1978): P was 4-yr old rendered quadriplegic when struck by D’s car on way to purchase ice cream
o TJ relied on educational level and vocational circumstances of parents/older siblings
 P’s mother was a teacher; court awarded $10k peryear
 ONCA agreed
 SCC said no
o SCC: can’t make assumption she will follow mom’s lead or that she will be a washout or public charge
 Reduced award to hallway between trial award and poverty line = $7500 + 20% deduction for
contingencies of life
o The problem that I have is that “following the parent’s lead” is just a way of perpetuating stereotypes. Children
that are in a privileged position (where their parents are well off) are heavily advantaged. Is there any income
amount that Courts will draw the line on? Ex: parent’s earning capacity is $500k/year