Table of Contents
Introduction to Tort Law............................................................................................................................................ 5
INTRODUCTION TO NEGLIGENCE ............................................................................................................................ 6
A) Historical Development of Negligence .......................................................................................................................................... 6
B) Elements of a Negligence Action ..................................................................................................................................................... 7
1) DUTY OF CARE .......................................................................................................................................................... 7
1. General Principles .................................................................................................................................................................. 7
Donoghue v Stevenson 1932 p 136 ..............................................................................................................................................................................8
Cooper v Hobart 2001 p 144 ...........................................................................................................................................................................................8
Fullowka v Pinkerton’s of Canada Ltd 2010 p 151 ..................................................................................................................................................9
Syl Apps Secure Treatment Centre v BC p 164 ...................................................................................................................................................... 10
Palsgraf v Long Island Railroad Co p 172 ................................................................................................................................................................. 11
2. Duty to “Rescue” ................................................................................................................................................................... 11
Horsley v McLaren p 213 [Inviting people to participate in activity created relationship where host is required to take
reasonable care for the safety of his guests] ......................................................................................................................................................... 11
Stewart v Pettie p 214 [Duty of Care exists by liquor proprietor, standard of care not breached bc sober ppl present] .......... 11
Little Plume v Weir p 221 [Duty of care exists, standard of care not breached]....................................................................................... 12
Neufeld v Foster 1999 BC p 223 [Distinguished from Stewart bc entire party drunk + final patrons] .............................................. 12
Childs v Desormeaux p 226 2006 SCC [Social host does not owe duty of care to a person injured by a guest who consumed
alcohol (maybe unless they have awareness + control)] ................................................................................................................................... 12
Oke v Weide Transport 1963 p 233 [After breaking sign on highway, it is not foreseeable that one will injure themselves as
a result]................................................................................................................................................................................................................................ 13
Zelenko v Gimbel Brothers p 237 US case [If undertake to act = liable] ...................................................................................................... 13
Emergency Medical Aid Act 2000 p 238 [One giving first aid is not liable for injuries] .......................................................................... 14
3. Liability to the “Rescuer” .................................................................................................................................................. 14
Horsley v MacLaren 1972 SCC p 239 ......................................................................................................................................................................... 14
Schlink v Blackburn 1993 p 240 [Not proximate enough claim as rescuer] ................................................................................................ 14
Bridge v Jo 1999 p 244 [Walking away from accident to call 911, = successful claim as rescuer] ...................................................... 14
4. Duty to Supervise Others .................................................................................................................................................. 15
Taylor v King 1993 p 247 ............................................................................................................................................................................................... 15
5. Duty to the Unborn .............................................................................................................................................................. 15
Dobson (Litigation Guardian of) v Dobson 1999 p 177 [Fetus cannot sue mother for pre-natal negligence] ................................ 15
Maternal Tort Liability Act p 197 ................................................................................................................................................................................ 16
Paxton v Ramji p 198 2008 ONCA p 198 [Doctor does not owe duty of care to fetus][Arguable Decision] .................................... 16
Liebig v Guelph General Hospital 2010 ONCA p 211 [health care providers owe duty to infant upon his delivery] ................... 17
6. Public Officials ...................................................................................................................................................................... 17
Pre-Cooper Jurisprudence: ................................................................................................................................................................... 18
**Proceedings Against the Crown Act, R.S.O. 1990, c.P-27 ............................................................................................................................. 18
Just v. British Columbia 1989 SCC p 255 .................................................................................................................................................................. 18
Brown v. British Columbia (261) ................................................................................................................................................................................. 18
Swinamer v. Nova Scotia (269) ................................................................................................................................................................................... 19
Post-Cooper Jurisprudence .................................................................................................................................................................. 19
Fullowka v. Pinkerton’s of Canada (151) ................................................................................................................................................................. 19
Municipal Government Act (276) ............................................................................................................................................................................... 19
2) Standard of Care: General Principles .............................................................................................................19
A) The Common Law Standard of Care: The Reasonable Person ......................................................................................... 19
Bolton v Stone 1951 p 102............................................................................................................................................................................................ 20
Priestman v Colango 1959 p 107 ................................................................................................................................................................................ 20
B) Factors Considered in Determining Breach of the Standard of Care............................................................................. 21
3. The Standard of Care Expected of Children................................................................................................................ 21
1
Heisler v Moke 1972 p 111 ........................................................................................................................................................................................... 22
4. The Standard of Care Expected of Person’s with Disability ................................................................................. 22
Blackburn v British Columbia 2001 p 114 ................................................................................................................................................................ 22
Fiala v Cechmanek 2001 p 118 .................................................................................................................................................................................... 23
5. Standard of Care expected of Professionals ............................................................................................................... 23
Millette Estate v Zung 2005 p 121 ............................................................................................................................................................................. 24
Reibl v Hughes 1980 p 83 .............................................................................................................................................................................................. 24
6. Custom/ Generally Approved Practice ........................................................................................................................ 24
7. Statutory Standards ............................................................................................................................................................ 25
R v Saskatchewan Wheat Pool (p 292) ..................................................................................................................................................................... 25
McGeek Enterprises v Shell Canada 1991 p 301 ................................................................................................................................................... 25
Ryan v Victoria 1999 p 304 (How important is it that someone comply with statutory duty, can they shield themselves from
negligence if they do that) ............................................................................................................................................................................................ 26
8. DEGREES OF NEGLIGENCE................................................................................................................................................. 26
Municipal Government Act p 276 .............................................................................................................................................................................. 27
Emergency Medical Aid Act (p 238) .......................................................................................................................................................................... 27
3) Proof of Negligence ...............................................................................................................................................27
1. The Burden of Proof ........................................................................................................................................................... 27
Nice v John Doe 2000 ABCA p 280 [Onus shifts on D in accidents, inference of negligence to be disproven by him] ................ 27
2. Res Ipsa Loquitur ................................................................................................................................................................. 28
Fontaine v BC (Official Admin) 1998 SCC p 287..................................................................................................................................................... 28
3. Breach of Statute .................................................................................................................................................................. 28
The Queen (Canada) v Saskatchewan Wheat Pool 1983 SCC [Violation of statute is evidence of negligence on part of D] .... 28
4) Causation ..................................................................................................................................................................29
General Principles.................................................................................................................................................................... 30
Snell v Farrell 1990 SCC p 318 [P has to prove that D created a risk that the injury would occur and the injury did occur =
justifies an inference that D’s conduct caused P’s loss. Trier of fact does not need medical certainty to draw inference of
causation] ........................................................................................................................................................................................................................... 30
Athey v Leonati 1996 SCC p 326 [Thin skull rule applies. D is liable for injury, even though there were pre-existing nontortious contributing causes] ....................................................................................................................................................................................... 30
Resurfice Co v. Hanke 2007 SCC p 332 [But for test used in most situations. Material contribution test used in exceptional
circumstances.] ................................................................................................................................................................................................................. 31
Clements (Litigation Guardian of) v Clements 2010 BCCA p 336 [But for test used in most situations. Material contribution
test used in exceptional circumstances] .................................................................................................................................................................. 32
Clements v Clements 2012 SCC p 347 [MC only applicable where P has shown factual causation by a number of D’s and
cannot exactly show which specific D caused injury] ......................................................................................................................................... 32
Ediger v. Johnston 2013 SCC p 356 [Faced with conflicting evidence of causation, TJ must weigh evidence to determine if
balance of probabilities met; TJ can draw inference, even if there is contradictory evidence] .......................................................... 33
Fullowka v Pinkerton’s of Canada p 168 .................................................................................................................................................................. 33
Factual Uncertainty: Alternative Approaches: Establishing Cause in the Difficult Case ................................ 33
Snell v Farrell 1990 SCC p 318 [Do not need medical/scientific certainty to find causation, based on balance of probabilities]
................................................................................................................................................................................................................................................ 35
Fairchild v Glenhaven Funeral Services 2002 (HL) [HoL willing to flex rules when its unfair for P to bare entire loss] ............... 35
Walker Estate v York Finch General Hospital 2001 (supp) [MC test could be applied in this type of dependency situation] .. 35
Sindell v Abbott Laboratories 1980 (Cali) ................................................................................................................................................................ 35
5) Remoteness .............................................................................................................................................................35
General Principles.................................................................................................................................................................... 35
Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co. Ltd. (The Wagon Mound No. 1) 1961 p 366 [Must use
foreseeability test, not directness test] ................................................................................................................................................................... 35
Hughes v. Lord Advocate 1963 p 367 [Not necessary to foresee the manner in which an injury occurs if the type of injury is
foreseeable] ....................................................................................................................................................................................................................... 36
Smith v. Leech Brain 1962 (371) ................................................................................................................................................................................. 36
Mustapha v. Culligan of Canada (374) [Reasonable foreseeability Test for mental distress: 1) Probable 2) Objective
damage too remote if breach would not have resulted in psychiatric harm of reasonable person] ................................................ 36
2
Intervening Forces ................................................................................................................................................................... 37
Intentional Wrongdoing ........................................................................................................................................................................ 37
Stansbie v Troman 1948 p 378 [Decorator owed duty to make premises secure, burglary was reasonably foreseeable] ....... 37
Intervening Medical Error .................................................................................................................................................................... 37
Mercer v Gray p 377 [As long as error is not result of Drs’ negligence, then D must pay all damages that result] ..................... 37
Suicide ........................................................................................................................................................................................................... 37
Wright Estate v Davidson 1992 p 379 [Suicide found to be intervening cause – questionable law] ................................................. 37
Costello v Blakeson 1992 p 383 [Suicide not found to be intervening cause, bc court applies thin skull rule] ............................. 37
Policy and the “Instinctive” Approach .............................................................................................................................. 38
Palsgraf v Long Island Railroad p 172 [Andrews J: when facts are bizarre/freakish] ............................................................................... 38
Meah v McCreamer (no 1) 1985 [Instinctive approach, P successful, difficult to reconcile with no2] ............................................. 38
Meah v McCreamer (no 2) 1986[Instinctive approach, P unsuccessful but on similar facts, inconsistency difficult to reconcile
with no1] ............................................................................................................................................................................................................................. 38
Lamb v Camden Borough Council p 388 [Judge applies instinctive feelings” to issue of remoteness] ............................................ 38
6) Defences to an Action in Negligence ...............................................................................................................39
Contributory Negligence ........................................................................................................................................................ 39
Contributory Negligence Act RSA 2000 p 414 ...................................................................................................................................................... 39
Seatbelts ....................................................................................................................................................................................................... 39
Galaske v O’Donnell p 414 [Duty to wear seatbelt, generally always negligent to not wear a seatbelt] ......................................... 39
Heller v Martens 2002 p 416 [Proper approach to apportionment of CN is comparative blameworthiness] ............................... 39
Cochrane v Morrish 2003 p 423 [P not contributory negligent bc not foreseeable that he would be hit by car] ........................ 40
Voluntary Assumption of Risk (volenti non fit injuria)............................................................................................... 40
Nettleship v Weston p 427 [Nothing short of an express or implied agreement to waive liability as to the required standard
of care will suffice] .......................................................................................................................................................................................................... 40
Illegality ....................................................................................................................................................................................... 40
Hall v Hebert p 428 [Defence of illegality applies only to purely profit driven criminal activities] .................................................... 41
Limitation Periods ................................................................................................................................................................... 41
Limitations Act p 434 ...................................................................................................................................................................................................... 41
7) Assessment of Damages ......................................................................................................................................42
Introduction / Purposes of Damages Awards in Negligence .................................................................................... 42
Types of Damages ..................................................................................................................................................................................... 42
General Principles: ................................................................................................................................................................................... 42
Andrews v Grand & Toy Alberta 1978 p 450 [Appellate Court are entitled to change the damages award, but must do so
with hesitancy and justification] ................................................................................................................................................................................ 42
Compensatory Damages for Personal Injury ................................................................................................................. 43
Introduction ................................................................................................................................................................................................ 43
Pecuniary Loss: Future Case ................................................................................................................................................................ 43
Pecuniary Loss: Loss of Earning Capacity ...................................................................................................................................... 43
Non Pecuniary Loss ................................................................................................................................................................................. 43
Collateral Benefits .................................................................................................................................................................................... 43
Minor Injuries ............................................................................................................................................................................................ 44
Survival of Actions and Dependents’ Claims for Wrongful Death or Injury ........................................................ 44
Survivial of Actions Act p 462 [Allows Estate to Bring a Claim or to maintain a claim that was commenced] .............................. 44
Fatal Accidents Act p 463[Allows family members to bring a claim] ............................................................................................................. 45
Pecuniary Damages ................................................................................................................................................................. 45
Whiten v Pilot Insurance Co 2002 SCC (Supp) [Punitive damages ................................................................................................................. 45
8) Pure Economic Loss ..............................................................................................................................................46
Categories of recognized economic loss (Exceptions that allow the PL to recover) ....................................... 46
Negligent Misrepresentation: Required Elements ....................................................................................................... 46
Negligent Statements (Most significant exception) ..................................................................................................... 46
Headley Byrne v Heller 1963[First Acceptance of Negligent Misrepresentation recovery in Tort Case] ......................................... 46
Queen v Cognos 1993 SCC [Test for Negligent Misrepresentation] .............................................................................................................. 47
Hercules Management v Ernst & Young 1997 SCC .............................................................................................................................................. 47
Whether P’s reliance on the advice was reasonable? ................................................................................................................ 48
3
Negligent Performance of Services ................................................................................................................................................... 48
BDC Ltd v Hofstrand Frams 1986 SCC [Problem with indeterminacy, + could have protected interests in contract] ................. 48
Economic Loss caused by the Negligent supply of products and structures....................................................... 48
Winnipeg Condo v Bird Construction 1995 SCC [We will allow recovery sometimes by limiting category of cases by degree of
danger involved]............................................................................................................................................................................................................... 48
Relational Economic Loss ...................................................................................................................................................... 49
Bow Valley Husky (Bermuda) v St. John ShipBuilding 1997 SCC [If you want to expand the categories, must do an Ann test]
................................................................................................................................................................................................................................................ 49
Design Services Ltd v R 2008 p 404 [If the party has other methods to allocate risk, a new category will not be created] ..... 50
9) Occupiers’ Liability ...............................................................................................................................................50
Occupier’s Liability in the Common Law ......................................................................................................................... 50
Alberta: Occupiers’ Liability Act ......................................................................................................................................... 50
Who’s Who................................................................................................................................................................................................... 50
Defences ....................................................................................................................................................................................................... 51
Warnings ...................................................................................................................................................................................................... 51
Liability of independent contractor .................................................................................................................................................. 51
10) Vicarious Liability ...............................................................................................................................................51
What Vicarious Liability? ...................................................................................................................................................... 51
Policy Objectives....................................................................................................................................................................... 51
Vicarious Liability at Common Law ................................................................................................................................... 51
TEST: Who is an Employee? ................................................................................................................................................................. 51
TEST: Is Employee Acting in the “Course of Employment”? ................................................................................................... 52
Bazley v Curry 1999 SCC [non-profit Foundation hired Curry, a pedophile, to work in group home. Employment required
him to perform intimate parent-like tasks. Foundation is VL for intention torts of D] ........................................................................... 52
Jacobi v Griffiths 1999 SCC [Through non-profit Boys and Girls Club employee commit sexual assault, taking children to
home, not directly related to job. Organization NOT vl because: Weak connection btw employment and assault committed]
................................................................................................................................................................................................................................................ 52
John Doe v Bennett 2004 SCC [Priest assaults boys, Strong Connection established] ............................................................................ 52
Vicarious Liability: Statutory ............................................................................................................................................... 53
Traffic Safety Act p 494 .................................................................................................................................................................................................. 53
Mahan v Hindes 2001 ..................................................................................................................................................................................................... 53
School Act p 495 ............................................................................................................................................................................................................... 53
11) Defamation ............................................................................................................................................................53
Definition of “Defamatory” ................................................................................................................................................... 53
Defamation vs. Negligent Misrepresentation................................................................................................................................ 53
Foundation of Liability ........................................................................................................................................................................... 53
Murphy v LaMarsh 1970 BCCA p 468 ....................................................................................................................................................................... 54
Ralston v Fomich 1992 BCSC p 471............................................................................................................................................................................ 55
Reference to the P .................................................................................................................................................................... 55
Booth v BCTV 1982 BCCA p 473 .................................................................................................................................................................................. 55
Publication.................................................................................................................................................................................. 55
McNichol v Grandy 1931 SCC p 477 .......................................................................................................................................................................... 55
Defences....................................................................................................................................................................................... 56
Truth/Justification ................................................................................................................................................................................... 56
Absolute Privilege .................................................................................................................................................................................... 56
Qualified Privilege .................................................................................................................................................................................... 56
Responsible communication on matters of public interest (Quan) ..................................................................................... 57
Fair Comment ............................................................................................................................................................................................. 57
Defamation Act p 482..................................................................................................................................................................................................... 58
Quan v Cusson 2009 SCC p 485 ................................................................................................................................................................................... 58
Hill v Church of Scientology of Toronto 1995 SCC p 490 ................................................................................................................................... 58
Torts Review Problem: .............................................................................................................................................58
4
Alternative Dispute Resolution .............................................................................................................................60
Introduction to Tort Law
1. What is Tort Law? A civil wrong, other than breach of contract, remedied by award of damages
2. Tort Law distinguished from other areas of law
Contract Law
Tort Law
Criminal Law
Two private litigants
Two private litigants
State and Private Individual
Obligations arise out of contract;
Initiated by private person to recover
Initiated by state to protect society by
willingly accepted
damages
punishing offenders and deterring
wrongs
Provincial
Provincial
Federal
Agreement/written deal (as
Standard of proof: balance of
Beyond a reasonable doubt
opposed to social contract)
probabilities
Issues of compensation, vindication of rights, punishment of offenders, deterrence
of antisocial conduct, public goals, preserve peaceful society, respect the rights of
others
 Common law actions in tort = divorced from any governmental connection, not subject to charter (unless tort
claim based on legislative enactment OR one of litigants is governmental official)
3. Tort Theory: serves different purposes depending on: area under review, type of injury, philosophy of lawmaker
 Essentialist (non-instrumentalist) account: corrective justice; explains obligation to avoid harming others and
repair losses
o Exists to right wrongs + restore equilibrium
o Social policy implications (punish wrongdoers, deter wrongdoing, compensate victims, vindicate rights)
= incidental
 Instrumentalist views: tool used to give particular outcome, goal-oriented theories
o Concerned with all goals on a continuum: accidental----negligence---intentional
 Fault Based: Provide justice to victims and peace to society; wrongdoer forced to correct wrong
 Aims of Tort Law
o Compensation
 The remedy, not the purpose
 Objectives of fault-based civil justice system found in the reasons of why compensation given
 But, $ has = reason for tort law success
 Cons: not satisfactory for long-term viability; not designed to compensate needy; courts not
equipped to decide which of disabled deserve priority, what levels of no-fault compensation
ought to be, how it will be funded
o Justice
 Integral to publicly condemn behavior
 Personal accountability + responsibility
 Tort law allows victims to be fully compensated to status quo
o Deterrence
 By imposing liability on those careless = deters? Maybe
 In theory, imposition of $ sanctions encourage those to act carefully
 But liability insurance transfers financial consequences from wrongdoer to insurer (although
liability insurance has cost too)
 In order to deter, must be aware of tort law, certain industries are (medical/waitress)
 Tort law damages not assessed to find minimum $ needed to deter behavior, assessed to
compensate victim
o Education
 Should the person have known the standard of care?
 Tort law purpose is not to teach us how to behave
 Ensures standards, judgments inform public of practices no longer acceptably by law (ie.
Slapping kids in schools)
5
o
Ombudsman
 Used to apply pressure on those w/ political, economic, intellectual power through fear of
getting sued
 w/ removal of gov immunities from suit and rapid escalation of gov tort liability
o Other
 Therapeutic jurisprudence ie. Sexual assault
 Accident losses: allocate accident costs into social costs; tort law internalizes externalities
 Grievance mechanism
 Clear standard of conduct
 Law and Economics: Tort law allocates accident losses. The costs of the activity should be
incorporated into the price of that activity. Enables society to experience the ‘optimal’ number
of accidents
 Winerib: Tort law does not accomplish above aims very well. But, tort law is not meant to accomplish aims, it is
there to be a system of corrective justice. It is an end in itself
4. Alternatives to Tort Law
 No Fault: does not distinguish amoung victims of accidental/negligence/intentional conduct
o Administrative scheme: compensate person who suffered loss + provide medical care’ alternative to
litigation based system
o If everyone chose no fault: more compensation + lower insurance premiums
o Pure no-Fault compensation: completely eliminated right to sue in tort.
o Threshold no-fault system maintains right to sue where the damages reach a certain threshold
o Cons of No fault: Lacks punishment for wrongdoing and upholding personal responsibility, lack of
incentive to be careful = higher number of accidents
 Cons of Fault-Based (Academics like no fault, practitioners like fault-based)
o Costly: burdens of liability = 2x benefits of compensation
o Expensive, long process, barriers to recovery, no guarantee of compensation
o Woodhouse report: Critics of fault based: ignores innocence of victims, damages awarded bear no
relation to degree of fault but to victim’s losses, community is not concerned w/ fault,
 Insurance: contractual agreement: for specified premium insurer assumes financial responsibility for judgement
obtained against wrongdoer
 Workers comp: provides costs of medical care. No need to prove fault, but trade off = employee cannot sue
employer for negligence. Provides restitution for medical care for injured employees, in exchange for forfeiture
of rights to sue = strict liability system (no need to prove fault) [compensation capped at certain point]. Cheaper
for everyone if no litigation.
 Other No-Fault Compensation Schemes
o No fault car insurance: No one can sue anyone – Alberta doesn’t have this – we can still sue someone if
its their fault. (Quebec and Manitoba have no fault; Ontario has a threshold of fault)
o In New Zealand no fault = very encompassing, covers all personal injuries caused by accidents.
INTRODUCTION TO NEGLIGENCE
A) Historical Development of Negligence
1. Plaintiff could only succeed where P show fault of D existed
2. Fault + Duty of Care (DC) used as limiting factors
o Limited Groups or situations where Duty of Care found
o Actions limited to breaches in these categories
o Lord Atkins suggested that: DC owing if actions create a foreseeable risk of harm to neighbor
 Donoghue takes DC out of category approach + broadens it
 Became widely accepted w/ regard to personal injury and injury to property
 Why has negligence expanded?
o Liability Insurance
o Social pressure to compensate victim
 Potential threats to growth of negligence liability
6
o
o
o
Philosophical and political arguments in favour of no-fault compensation systems
Time-consuming, costly, inaccessible system
If potential liability continues to expand, liability insurance won’t be affordable to average person
B) Elements of a Negligence Action
1. Duty of Care: A duty of care is owed to persons who fall within the ambit of foreseeable risk created
by the D’s actions.
 Question of Law: Is D under legal obligation to take care for P’s interests?
 Did my action expose anyone to risk of injury?
2. Standard of Care and Its Breach:
 Standard of Care: What would a reasonable person have done in the Circumstances? (Legal Question)
 Breach: Did the defendant meet those standards – were they negligent? (Fact based)
 IE. IF standard is not met, then DUTY is breached.
3. Causation (Factual cause): Did D’s Negligence cause P’s loss? “But For” Test: But for P’s negligence,
would the incident have occurred?
4. Remoteness of Damage (Proximate cause)
 Defendant is only liable for losses that are a foreseeable result of his conduct
 Q: For which of P’s injuries should D be held liable? Which of the injuries are sufficiently proximate?
 Did my action expose this person to this particular injury? This extent of injury?
5. Actual Loss (damage)
 D will not be liable if P cannot prove that he suffered legally recognized type of loss.
 Imperfect relationship: Money does not fix injury, but operating on full-restitution, putting P back in
position they would have been had they not been injured
6. Defences
 Should the P conduct be taken into consideration?
 Contributory negligence; voluntary assumption of risk; illegality
 Limitation periods
1) DUTY OF CARE
1. General Principles
 If there is no duty owed, there is no claim
1. Is a duty owed?
2. Have we already decided this?
a. If No: Anns Test (POST COOPER – IN EXAM always do a new test!)
i. First Stage: Was harm to the plaintiff a reasonably Foreseeable consequence of the D’s
actions?
ii. First Stage: Is the relationship btw plaintiff and defendant sufficient PROXIMATE to warrant a
duty of care being imposed? (Incorporate policy considerations at this point)
1. Expectations of the parties
2. What representations were made?
3. Did the P rely on D? Was D aware of reliance?
4. Were there property or other interests implicated?
iii. If the court is prepared to recognize a duty, then 
iv. Second Stage: Consider residual policy considerations.
1. Broader policy questions, outside of the relationship of P and D
a. What would be the effect on:
i. Other legal obligations?
ii. On the legal system?
iii. On society more generally?
7




Questions to ask: Whether D owed any legal obligation to look out for P’s interests?
o Who is the victim? Was this a foreseeable victim of the D’s negligent conduct?
o Who is the wrongdoer? Does their status preclude a duty being owed?
o What is the activity involved? Some activities do not have duty applied? (judicial legislation)
o What is the kind of injury? Ie. Courts have been less likely to owe duty to financial loss
Not necessary that there is an essence of privity of contract btw P and D. If you have to have a contract w/ the
person that you are suing = limited in scope
Donoghue revolution: Atkins Majority: We do owe a duty of care that the law views as our neighbours: those
who are so closely and affected by our actions that we should have in our contemplation when we are acting.
Anns v Merton Borough Council: the duty of care has evolved since Donoghue – we don’t know have to
recognize if there is already liability in given facts.
o 1. Is there a sufficient proximity of neighborhood btw p and d that in the reasonable acts of D affect P;
= duty of care
o 2. Are there any factors (policy) in which we would be reluctant to recognize that duty or want to limit
the duty
 Concerns of indeterminacy: can’t predict the effect of enforcing this
o Anns test is no longer the governing approach in Canadian Law
Donoghue v Stevenson 1932 p 136
Facts: Woman finds snail in beer bottle purchased for her by friend.
Issues: Does the manufacturer have a duty of care to the end consumer?
Decision: The manufacturer is considered negligent and liable.
Reason: The manufacturer must do unto his neighbor and he would like his neighbor to do unto him. If he is going to
package products in a container that is not clear, then he has a duty to ensure the product inside is of the required
standard.
Ratio: We owe a duty of care to our neighbours: those who are so closely and affected by our actions that we should
have in our contemplation when we are acting.
Cooper v Hobart 2001 p 144
Parties: A: Mary Francis Cooper = one of 3000 investors; R: Robert J Hobart is the Registrar
Facts: R suspend a third party company Eron’s license and issued freeze of assets because he used funds by investors
for unauthorized purposes. Appellant is an investor who alleges that Registrar of Mortgage Brokers, is liable in
negligence for failing to oversee the conduct of an investment company which the Registrar licensed. He says that
Hobart knew 1 year prior that company was faulty and breached the duty of care by failing to tell the investors. In
failing to do so, they did not give the investors ability to choose how to invest properly.
Issues: whether the Registrar owes a private law duty of care to members of the investing public giving rise to liability
in negligence for economic losses that investors sustained?
Decision: not a proper case to recognize duty of care
Judicial History:
1. A Plaintiff is allowed to bring a class action unless it is obvious no reasonable cause of action is disclosed
2. Ann Test: a) should the defendant have foreseen damage was likely to result from negligent actions? If yes,
then there is a prima facie duty of care: YES R reasonably contemplated that carelessness on his part likely to
cause damage to P
b) Are there any consideration which would be negative or limit the prima facie duty of care? NO.
(i) Was the defendents action the result of a policy decision of a public body?
(ii) Is the D protected by statute or common law?
(iii) Is the D exempted from liability by a “good faith” clause in statute?
(iv) is relationship btw parties too distant, or P too unknown, that to impose liability would be unjust?
(Indeterminate liability)
Trial needed to answer (i-iii).
Reason:
8
1. Not thus far recognized by Canadian courts, should it be extended to this situation?
2. Must be close and direct relationship of proximity/neighbourhood. But what is proximity? Anns: policy
considerations play important role in determining proximity in new situations. Use Ann’s two part test.
3. Yuen Kun Yeu v AG HK: to find prima facie duty of care in 1st stage of test: must be reasonable foreseeability of
the harm + something more.
4. Ann’s test:
a. Was the harm that occurred the reasonably foreseeable consequence of the D’s act? (focus on factors
arising from relationship, include q’s of policy)
i. Proximity: characterize type of relationship in which duty of care arises AND sufficiently
proximate relationships are identified through categories. (there are cases where they have
already acknowledged a duty of care)
1. Personal injury or property damage
2. Negligent misstatement
3. Likened to a situation of duty to warn of risk of danger
4. Governmental authorities who undertake road maintenance
These are indicators we can use
ii. If it doesn’t fit in the above categories must look at: expectations, representations, reliance
and property = help evaluate closeness
b. Are the reasons, notwithstanding the proximity btw the parties established in the 1st part, that tort
liability should not be recognized here? (do residual policy considerations negative the imposition of
duty of care?)
i. What is the effect on society legal system of recognizing a duty here?
ii. Does the law already provide remedy?
iii. Does it create spectre of unlimited liability to unlimited class?
5. Answer to Ann Test: (Seems to Modify Ann’s Test by asking foreseeability AND proximity in first stage)
a. Statute does not impose duty of care on Registrar to investors (it would potentially conflict with
Registrar’s overarching duty to public which is what overall scheme of Act mandates)
b. Since no proximity sufficient, need not proceed to second stage of looking at residual policy
considerations
6. Policy considerations are relevant at each stage: First stage (relationship between parties) and second stage
(residual policy considerations)
Ratio:
Fullowka v Pinkerton’s of Canada Ltd 2010 p 151
Facts:
Issue:
Decision:
Reason:
Ratio:
Sued: government of NW territories and the security company that had been hired to replace workers
Is duty of care owed to the Ds?
Use of Anns Test
Pinkertons
Stage 1: Do they owe a duty of care to these various miners if they breached the standard of care. Is the harm
foreseeable to the reasonable person? Yes. Pinkertons had foreseen this type of risk
Is there sufficient proximity? – Was there reliance on the workers. What representations were made by the Ds? Key
point: Reliance and expectations.
Pinkertons had significant degree of control over the risk and Pink’s did reasonably rely upon Pink to keep situation
safe
Sufficient proximity and reliance on workers
Government had statutory duty to check the mine
9
Court of Appeal rejected that Pinkerton owed a duty of care. They had taken reasonable steps. Pinkerton was not in a
position to Guarantee safety.
SCC asks whether they owe a duty. Pink had to do what was reasonable to keep the situation safe.
Government:
Stage 1:
Violence and personal dealings with the minors.
Proximity (re Government)
Must look at statute
Proximity exists here because: 1) smaller group; 2) More direct and personal dealings 3) Statutory duties were related
to conduct of miners themselves
Potential for conflicting duties
Ultimately, none of this is enough to outweigh our decision that a duty of care is owed.
Why aren’t the defendants liable if they found a duty of care?
Because they met the standard of care
Government took the legal advice that they were not able to close the mine.
Syl Apps Secure Treatment Centre v BC p 164
Facts
Issue
Decision
Reason
Ratio
SCC struck down claim because
1) Although there was foreseeability, 2) The child welfare system dependent upon statutory obligations. If the social worker
did owe a duty then they would be able to focus on the best interest of the child – conflict btw duty owed to the child
(transcendent legal obligation);
2) Already decided no proximity but: Residual policy considerations: presents concerns. The possibility that these decisions
are made by judges and decided on the basis of the evidence brought before the judge, effect would be relitigating
decisions already made
3) REASONS: does not matter which section we deal with policy considerations in. But that’s not very compelling because it
is the P’s job to raise proximity and the D’s job to raise policy considerations.
Key Points Duty of Care
Is there a duty of care test owed?  Have we already decided this in court? If yes, then we do not need to do an Anns Test
If not, then what are the questions that we have to ask?
1. Was Harm to the P a reasonably FORESEEABLE consequence of the D’s actions? If yes then,,
2. Is the relationship btw P and D sufficiently PROXIMATE to warrant a duty of care being imposed?
a. Look at expectations
b. Reliance
c. Representations
d. Property / Other interests
3. If the court is prepared to recognize a prima facie duty, then: What are the residual policy considerations? (Broader policy
questions outside of the relationship of the P and D)
a. If we found a duty of care to exist here, what effect would that have on other legal obligations, on the legal
system, or on society more generally?
What are the courts attempting to do with the duty inquiry? Ie. What are they trying to balance
10
- Injured P who needs compensation and the effect of saying that D should compensate that person
Why not use the duty at large approach? What are the risks?
- Indeterminacy problem illustrated
Palsgraf v Long Island Railroad Co p 172
Facts: Passenger boards train, carrying package wrapped in newspaper. The packaged contained fireworks, which were
knocked out of his arms. They exploded and knocked over a scale, which hurt the victim.
Issue: Do we owe a duty at large to everyone who might foreseeably be harmed? Or to only a smaller class of persons?
Decision: No duty owed to the Plaintiff bc she was too far away from the situation to be a reasonably foreseeable
victim.
Reason:
Concern: notion of opening the flood gates allowing the duty of care to become unwieldy
Ratio:
2. Duty to “Rescue”






Rescue: loosely defined as ‘duty to exist’
Does the common law expect us to come to the aid of our fellow humans and whether we can face negligence liability if
we fail to do so
General Principle: No duty to rescue in common law
Quebec Civil Code: Every person must come to every person whose life is in peril unless it causes fatal danger to himself
or for another significant reason.
Justifications for common law to refrain from requiring one helping someone
o Courts drawing distinction btw misfeasance and non-feasance
o Requiring “duty to assist” would effectively change many aspects of common law
o Liberal Philosophy upholds punishing wrongful interference with others – does not require punishing those who
fail to help others
o Winerib: The law consists of rules that tell one how not to interfere in business or the rights of others. To impose
an affirmative duty to require interfering goes against blanket position of common laxw
Below cases are exception to the rule. OR they are set in a certain context (due to the relationship of parties/how the
situation arose) which requires certain action on behalf of the accused
Horsley v McLaren p 213 [Inviting people to participate in activity created relationship where host is required to take
reasonable care for the safety of his guests]
Background: McLaren: owner and operator of a boat. Matthews lost his footing during the boat ride and fell into the water. The
owner is told that M has fallen in, and he tries to back up toward Mathews but he unable to help him.
Facts: Horsley jumps in. She managed to get back on board. Horsley died from shock due to sudden emergence in the water. Claim
against McLaren because he did not manage to rescue them. Matthews claim dropped due to no causation. Did M’s negligence
lead others to take steps to help? Yes. Horsley jumped in and lost his life.
Ultimately horsley was not successful.
As the social boat operator and the host, Mclaren did owe a duty of care. He brought his guests into this relationship, he was
obliged to exercise reasonable care for their safety.
Whats the standard of care?
His rescue attempt was not reasonable
Causal connection btw Matthews death and mclarens actions?
Due to Mclaren’s failure to effectively rescue Matthews, his negligence in doing so caused others to jump in and help.
Key Point: In the context of inviting these people to participate, created a relationship which in itself required him to take
reasonable care for the safety of his guests.
Stewart v Pettie p 214 [Duty of Care exists by liquor proprietor, standard of care not breached bc sober ppl present]
Background: Jordanhouse: Not a duty to ensure entire safe travel home, but telling a drunk go to home knowing he has to walk
along a busy highway, when you’ve served him to intoxication, when he is a regular patron.
Facts: Suing Stage West for over-serving liquor to the driver.
Duty of Care: There was a sufficiently close relationship and a duty of care was found.
11
Standard of Care: But because they had two sober people with them, they found that the standard of care had not been breached.
Little Plume v Weir p 221 [Duty of care exists, standard of care not breached]
Facts: Cannot serve people in establishment who are already intoxicated. Offers taxi, leaves pub, gets hit by car. Sues driver and
pub owners.
Commercial host has a duty to take reasonable steps.
No duty to ensure that they get all the way home, but duty is to act reasonably in taking steps in evicting someone from your
building.
Neufeld v Foster 1999 BC p 223 [Distinguished from Stewart bc entire party drunk + final patrons]
Facts: P in D’s car, vaulted into ditch. None of the 4 can remember who was driving. Evidence suggests that driver was D. Party
drinking at Pub.
Issue: Does the pub owe a duty of care to the guests? If so, did they meet the standard of care?
Decision:
Reasons:
 Third party pub over-served P. They knew or ought to have known that these patrons were intoxicated. They called cabs
but did not make sure patrons got in them.
 Analysis of Liability
o Pub owners
 Owner of pub not negligent when served 10-14 oz of alcohol to patron who got into car accident after,
because he was with 2 sober women.
 “Where no risk is foreseeable as result of circumstances, no action will be required”
o Honest Moon (owner) argued they had done what was reasonable, by asking for keys, telling him not to drive
and calling a taxi. Counsel argued standard is not perfection and had done what was required of a reasonable
persons to see that its patrons were not at risk
 Pub failed to meet standard of care
o 1. Over service to point of 3x blood alcohol limit of driving
o 2. Men sleeping on the table = signs of over-service
o 3. None of them fit to drive or make out sensible decisions.
o 4. They were final patrons to leave the pub, not unreasonable to expect employees to ask for car keys and
ensure they got into taxis
Ratio: Distinguished from Stewart bc entire party drunk + final patrons.
Childs v Desormeaux p 226 2006 SCC [Social host does not owe duty of care to a person injured by a guest who
consumed alcohol (maybe unless they have awareness + control)]
Facts: Person hosts drinking party, inebriated guest then drives and causes car accident + injury.
Issue: Is the host liable to third parties who may be injured by drunk guests?
Decision: Appellants action dismissed
Reason:
 General rule: Social host does not owe duty of care to a person injured by a guest who consumed alcohol
 Exception: Unless social host actively controls supply/service of alcohol, they are not liable for accidents that follow
 Applied Anns test and did not give rise to duty of care on social hosts of parties to members of public who may be injured
by guest’s conduct
 Claim that host is liable is a new category of claim (compared to existing commercial host liability)
o Commercial hosts monitor alcohol consumption
o Sale and consumption is regulated by legislatures applying to commercial establishments, which imposes special
responsibilities on those who profit from supply of alcohol
o Contractual nature of relationship btw pub keeper and patron is different than social relationship at party
 No incentive to over-serve
 Anns Test:
 What links party host to third-party users of highway?
o Proximity has not been established. Not reasonably foreseeable and no duty would arise because there was no
positive duty to act
 1. Was there foreseeability?
o If there was no finding that host KNEW that guest was about to drive impaired, they cannot be said to have
foreseen that allowing him to drive would result in injury to motorists
12
o
Just because he had been convicted of drunk driving in the past does not mean he will make the same choice
after the party
 2. Was there proximity?
o There’s no way that this relationship is sufficiently proximate
o This isn’t a case of the host acting, it is a nonfeasance situation bc. It involves a failure to act.
o Misfeasence vs. Nonfeasance: Sometimes just foreseeability in the context of misfeasance can create sufficient
proximity. But in the case of nonfeasance (failure to act) foreseeability alone is not enough.
o Where conduct alleged against D is a failure to act – foreseeability alone may not establish duty of care! We
should be concerned with overt act of host, not omission to act. If D had created a risky situation and invited
others, he would have been liable as host (ie. Horsley). Or if there was parent-child
relationship/power/paternalistic relationship or engage in commercial enterprise/public function.
o Themes needed to exist to find sufficient proximity on social host to users of highway:
o 1. What was D’s role in the creation of risk/control of risk itself?
o 2. How is D affected by the Duty that would be owed
 The law does not impose duty to eliminate risk
 Its not for the law to say that one has a responsibility to prevent others from engaging in risky
activities/behavior
o 3. Reasonable Reliance: D is relied upon to look out reasonable safety to mitigate risks that might occur. (ie.
Teachers/supervision context)
o Finding: Host is not liable
 Hosting a party is not inherently risky
 Party hosts do not have paternal relationship with guests
 Host not acting for public function, not reasonable for public to rely on them
Ratio: Social host does not owe duty of care to a person injured by a guest who consumed alcohol
Note: D sued party host bc drunk driver does not have insurance and his license was suspended. Gov has $ to cover some costs,
but not all. D wants to find someone with deeper pockets.
Exceptions to the Ratio:
 Awareness: If the host KNEW that the driver was drinking, and was planning on driving home he might be liable.
 2. Control: If host supplied alcohol and served alcohol, might lead court to impose duty of care. (But this makes it more
foreseeable, hard to see how this makes it more proximate.
 Possible Effect: the less you know about your friends drinking habits, the better. However, arguably if there was a duty of
care social hosts would be more careful
Oke v Weide Transport 1963 p 233 [After breaking sign on highway, it is not foreseeable that one will injure
themselves as a result]
Facts: Appeal by Weide Transport and driver Frank Carra whereby damages were allowed under the Trustee Act and Fatal
Accidents Act. Deceased Oke was driving home, attempted to pass another driver, used gravel divider and ran into sign post. D
owned tractor unit which one day before had struck the sign and caused it do be bent over.
Issue: Was Carra negligent in failing to report the broken post? Was the damage sustained by the Ps foreseeable or too remote?
Decision: Allow appeal, set aside judgment against D
Reason:
1. The damages and injuries complained of were not reasonably foreseeable and are too remote to enable P to recover
2. Seems wrong to conclude that Carra, after an innocent collision with the sign, should be deemed to have anticipated
somebody would endeavor to pass a slow moving vehicle at point where it was dangerous to do so
3. Carra was not negligent in hitting the sign. It was an accident. He is in no different position than any other driver. Since
there was not negligence to begin with – court is less likely to find duty of care in someone owing a positive duty to take
action
Dissent:
Standard of “the wagon mound” was that if the D foresaw or could reasonably foresee the intervening acts which led to the
damage, then he would be liable. By this standard, Carra is liable.
Did not need to see the precise accident occurring, merely that leaving a broken sign may be a source of danger to motorists
Response to #3: The fact that the accident is unusual does not relieve D of liability. Other drivers are not on the same plane as the
truck driver who actually hit it
Zelenko v Gimbel Brothers p 237 US case [If undertake to act = liable]
Facts: If a D owes a P no duty, then refusal to act is not negligence. P’s mom taken ill in D’s store
Reasons:
13



Assume D owes her no duty, but if D undertakes a task, then D must not omit to do what an ordinary man would do in
performing the task
D undertook to get medical aid, but failed to do so for 6 hours.
Neglect is therefore actionable
Emergency Medical Aid Act 2000 p 238 [One giving first aid is not liable for injuries]
A person, whether medically trained or not, who renders first aid/medical aid to a victim is not liable for damages for injuries or
death of that person alleged to have been caused by an act/omission on their part in rendering medical services. UNLESS, it is
established that injuries/death result from gross negligence
3. Liability to the “Rescuer”
Example 1: Wagner v International Ry Co 1921 [After creating danger, objectively foreseeable that one will attempt to rescue]
 Danger invites rescue
 The risk of rescue, if only it be not wanton, is born of this occasion
 The wrongdoer may not have foreseen the coming of the deliverer. He is accountable as if he had.
Example 2: Moddejonge v Huron County 1972 [If rescuer actions rash, still protected by law]
 School field trip. D took kids to lake and 2 girls carried out on surface current and classmate Moddejonge was able to
rescue 1 girl, not the other, and both died. Moddejonge was a rescuer and has claim against school.
 The law will protect Moddejonge’s actions. Her actions, even if they are rash and futile, are still protected
Example 3:
 P was father of woman who had surgery. Daughter only has one kidney, Doctor thought it was a cyst and removed it.
Father donates kidney to daughter. Claim against doctor as rescuer.
 This is a situation of rescue. Doctor is liable for Father’s downtime/pain etc.
Horsley v MacLaren 1972 SCC p 239
Facts: Host of boat. Guest falls overboard. Attempts to save him badly. Another guest jumps in to help. That guest is Horsley and
died.
Issue:
Decision:
Reasons:
 Duty rested upon R Maclaren as host, to do the best he could to effect the rescue of one of his guests who had
accidentally fallen overboard
 The negligence of Maclaren in his attempt to rescue Mathews aggravated Horsely to risk his life by diving in after him
 If a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person
in danger (Denning in Videan 1963)
o Therefore, MacLaren must have created a new situation of peril through his negligence in attempting to save
Mathews
Schlink v Blackburn 1993 p 240 [Not proximate enough claim as rescuer]
Facts: P claim damages for injuries as result of car accident. Car negligently driven by D struck car being driven by P’s wife, in sight
or within earshot of the said P and as a result the P suffered serious personal injury and expense and continues to do so. Schlink
sustained injures: fractured foot, nervous shock, anxiety, emotional trauma + medical care for treatment.
Issue: Does this have sufficient foreseeability, proximity, causation and remoteness btw the tortious conduct and the physical
injuries suffered?
Decision: Allow the appeal, dismiss the action
Reason:
 Was the P a reasonably foreseeable victim? Even if it is foreseeable, it is not proximate enough
 Schlink is not a rescuer to his wife. No evidence of danger, escape from entrapment, delayed treatment etc. No urgency
here.
 Its not appropriate to have D be liable for P
 Remoteness: is this injury closely enough connected? No.
Bridge v Jo 1999 p 244 [Walking away from accident to call 911, = successful claim as rescuer]
Facts: P aid person she believed to have been injured after car accident. She was returning home to call 911, slipped and broke
right leg. Claim as rescuer against driver of pick-up.
Issue: Can she claim as rescuer against driver of pick up?
14
Decision: Yes, the pick up is liable.
Reason:
 Case: P helps at car accident. Walks away. Hit by other car. Held: reasonably foreseeable consequence of the negligent
driver’s actions
 Reasonably foreseeable that there was a likelihood of collision if the duty of care to the other vehicle drivers was not met,
specifically under the then existing icy conditions. Reasonably foreseeable in residential neighbourhood that someone
would go to aid of driver and would be at risk on slipping.
 Despite the fact that the person in the car didn’t really need rescue – it was reasonable to assume she would
 P’s intervention did not break chain of causation. Intervention reasonable response to sister in laws call for assistance. P is
within class to whom pick-up driver owes a duty
 It is not rescuer’s need to determine urgency.
Reconciling Schlink and Bridge: Schlink has other motives ie. To be with his wife. Schlink did not take reasonable care for his own
safety. In bridge, she was dressed right for the weather.
4. Duty to Supervise Others
Taylor v King 1993 p 247
Facts: Appeal from decision awarding Respondants (Ps) $70k in damages arising from Fire.
 Taylor own 2 cottages on Hornby. Taylor and Kings go for weekend, Kings stay in guest cottage
 Kings leave for errangs, leaving Roddy (9), sister Marisa (12) and Taylor’s daughter Anja (11)
 Girls leave to bake cake at main cottage. Roddy pokes fire, put screen back and went to main cottage. Fire starts at
cottage.
 Trial judge: found Rodney negligent and found Kings negligent in failing to warn children, tell Marissa she was in charge of
roddy and tell Taylors they were away
 Grounds for appeal: TJ erred in concluding fire was negligence of Roddy, erred in finding Kings negligent, erred in damage
assessment
Issue: Is roddy king negligent?
Decision: Roddy king negligent, parents not negligent.
Reason:
 1. Evidence supports that fire started when Roddy was alone in cottage. He was left alone for 20-30 minutes. Appeal does
not succeed
 2. Known that Roddy likes fire and foreseeable he would play with stove/candles.
o Failed to impress warning on children of fire, to tell marissa she was in charge of roddy, tell Taylor they were
leaving, left matches behind
o Principle: Parents are not liable for negligence of their children by virtue of their status as parents. BUT parental
duty imposed on parents apart form wrongdoing/liability.
o Whether parent is negligent is based on community standard
o Parents have duty to supervise and control activities of their children
o Lack of specific warning of playing with fire cannot be said to be negligence as no proof that child was prone to
fire. His parents could not anticipate he would roast marshmellows or play with fire. Just because they left
matches does not equal negligence.
o Should not have been found negligent for not alerting taylors.
 Decision: Kings not negligent, Roddy negligent. Damages is not by cost of replacement but rather diminution in value as of
the date of the loss.
5. Duty to the Unborn



Duty doesn’t crystalize until the child is born
Manifestly unjust and unreasonable to fail to see that if a pregnant woman is injured, then her fetus can be injured
If the pregnant woman herself was driving and was negligent in doing so, could the mother own a duty of care to her own
fetus?
Dobson (Litigation Guardian of) v Dobson 1999 p 177 [Fetus cannot sue mother for pre-natal negligence]
Facts: Foetus injured during mom negligent driving. He suffers from permanent mental and physical impairment, including
cerebral palsy. Infant, by his grandpa, launched tort claim against appellant for damages sustained.
15
Issue: whether infant has legal capacity to bring tort action against his mother for negligent act that occurred while he was in
utero.
Decision: TJ = infant has legal capacity to sue mom; CA dismiss appeal;
Reasons:
 TJ base decision on 2 principles
o 1. No common law bar to actions in tort by children against parents
o 2. CDN courts have recognized personality of foetus as fiction which is utilized to protect future interests. Certain
rights may be asserted by infant upon being born alive
 If an action can be made by foetos to stranger for prenatal injuries cause by her negligence
 New Brunswick CA
o At time of accident, infant did not have legal capability
o Common ground for child to sue parent, or to sue third party for prenatal negligence
o Distinction when brought on behalf of another
o Injuries are a result of negligent driving incident, not overall life decisions (Which would bring up major policy
considerations)
o Pregnant woman has a general duty to drive carefully in relation to child + third-party motorists
o Child should be able to enforce his rights, to hold otherwise would partially exclude pregnant woman’s duty to
drive carefully.
 SCC
o Montreal Tramways: child should be allowed to sue in courts for injuries wrongfully committed upon its person
while in the womb of its mother. Does not address sensitive issue of maternal tort liability
o Duval: neighbor principle: it is reasonable foreseeable that negligent driving may cause injury to pregnant
woman, possibility of injury to child foreseeable as well. Therefore, ther is sufficiently proximate relationship.
o Kamloops test: Before imposing duty of care, court must be satisfied :1) that there is sufficiently close
relationship btw the parties to give rise to duty of care; and 2) that there are no public policy considerations
which ought to negative/limit scope of duty
 1) is assumed to be satisfied
 2) Policy concerns
 privacy and autonomy rights of women and difficulties inherent in articulating judicial standard
of conduct for pregnant women
 Give rise to gender-based tort
 Distinction btw “Driving” and activities “peculiar to parenthood” = does not uphold
o Conclusion: policy consideration should not allow
o Duty of care remains not legally but merely a moral obligation
 Dissent: no policy concerns are sufficient to negative child’s right to sue arise on facts of this case specifically
Maternal Tort Liability Act p 197
Pregnant women can owe a duty of care, and explain context in which they can owe a duty of care. Damages covered only to
extent of policy limits.
Paxton v Ramji p 198 2008 ONCA p 198 [Doctor does not owe duty of care to fetus][Arguable Decision]
Facts: Doctor must inform pregnant woman of material risks of any prescriptions or procedure on potential future child. Dr
proscribed Accutane (damaging to babies) on basis that father had vasectomy.
Issue: Whether doctor owes a tort law duty of care to future child of doctor’s patient?
Decision: Respondent owed no duty of care to appellant (fetus)
Reasons:
 Knew husband had vasectomy. He gave her pregnancy test which was negative, then gave her Accutane. But test was
erroneous and vasectomy failed and she was pregnant. She elected not to abort. Baby severely disabled.
 Duty of Care: Use Anns Test
o Reasonable foreseeability: Question of reasonable foreseeability of possible harm to a future child by actions or
omissions of the mothers doctor in prescribing medicine to mother = not difficult. Met
o Proximity: Whether doctor and future child are in close and direct relationship of proximity = fair and just that Dr
should owe duty of care?
 No:
 Conflict btw best interests of child and best interests of patient
 Relationship w/ child is indirect, mediated through parent
 Doctor cannot be sure that patient will be using birth control etc.
16

o
Duty of care to the patient, not her baby. She is legally attached to him and makes those
decisions
Step 2: residual policy considerations
 Since proximity not met, not necessary to go here. But – it would be unwise
Liebig v Guelph General Hospital 2010 ONCA p 211 [health care providers owe duty to infant upon his delivery]
Facts: Kevin suffered reaction during pregnancy, alleges injuries caused by negligence of D immediately b4 and during delivery
process.
Issue: Do they owe a duty of care to the infant plaintiff in relation to his delivery?
Decision: Yes, appeal dismissed.
Reasons
 An infant, once born alive, may sue for damages sustained as a result of negligence of health care providers during labour
and delivery
 Duty of care clearly exists
 R argue that Kevin has no cause of action against them (as per Paxton: no duty of care to future child if alleged
negligence by a health care provider took place prior to conception)
 Choose to follow majority of case law
 Wrongful birth – claims made by parents of child born with illness/disability
o Argument: physician’s negligence did not allow them to make an informed choice about continuing with the
pregnancy
o Generally recognized
o Damages = additional expenses based on child’s disability
 Wrongful life: Arise in the same type of situation – claim brought by the child
o But for physician’s negligence, I wouldn’t have been born
o Hard to recognize – most jurisdictions do not
o Hard to assess damages – what value do you put on existence?
 Wrongful Pregnancy: Physician was negligent about advice about contraception or about sterilization procedures
o Suing for damages – cost of raising a child
o What about mitigating damages by having an abortion or adopting child?
o Court says that’s not a reasonable argument
o Physician should be responsible for full extent of damages (child-rearing damages)?
o What was the motivation for sterilization? Was it economic?
 Ultimately what courts are doing when they deny child-rearing costs is privatizing those costs to
the family, and mainly resting it on women
 Will award things like income loss, pain & suffering, etc.
Ratio: Health care providers owe duty to infant upon his delivery
6. Public Officials



Tradition: King/Crown had immunity.
o 1950’s Canada legislated that Crown could be liable for negligence
o Government servants act on behalf of crown
Why distinguish btw public authorities and private persons for the purposes of tort liability?
o Serves entire community/larger population
o Makes public policy decisions
Statutory powers vs. statutory duties
o Government entity is created by statute
o Courts struggle with how to best hold government liable for statutory duty, (where government does not have
discretion to exercise). Courts decide that government will not be liable for their obligations, but will be liable in
the action of carrying out that statutory duty.
o Courts fear that imposing liability on public authority who acted pursuant discretion, bc stepping on toes of
separation of power.
 Should this decision be justiciable? Unsettled.
 Do courts have the resources/info to be able to “make” a policy decision? No.
 May be appropriate to apply negligence liability on government in some contexts.
17



Anns: Public Authority Case of negligent inspections by gov council on buildings. Owner later discovered the defect and
was required to pay to sum to repair it. Pure Economic Loss: Courts less hesitant to apply negligence in purely monetary
loss situations.
Issue: Whether the public authority could be liable in failure to do an inspection, or if it did inspect, failure to do so
negligently?
Reasons: Policy argument distinction. When government entities are making policy (Except if made in bad faith) then they
will not be liable. When government entities make operational decisions, a common law duty of care can be imposed.
Pre-Cooper Jurisprudence:
How are the courts to approach public authority liability?
 Policy/operations dichotomy
o Policy decision when these indicators are present:
 Social, political, economic factors
 High level of decision-making
 Resource allocation decisions
 Case law does not appear to have strict distinctions btw policy and operational
**Proceedings Against the Crown Act, R.S.O. 1990, c.P-27
Just v. British Columbia 1989 SCC p 255
Facts: Boulder falls, kills daughter, injures P. P brings action against R contending that it had negligently failed to maintain the
highway properly. Department of Highways had system of inspection, carried out as usual, found nothing.
Issue: Does the government have a duty of care to the father and daughter?
Decision: Yes, this decision was a operational decision.
Reason:
 Tj + CA: no standards to which rock scaling crew required to work against to determine. So it was a policy decision. No
liability on this.
 Anns Test:
o Duty of care owed by province to ensure highways had reasonable maintenance.
o Appellant, as user of highway, was in sufficient proximity. Reasonably foreseeable that harm might befall users of
highway if it were not reasonably maintained.
 1. Does applicable legislation impose obligation on R to maintain highway or exempt liability?
o Highway act = places obligation on R to maintain highways atleast to same extent as maintaining roads
 2. Is province exempted from liability on grounds that system of inspection is a policy decision of government agency?
o Complete crown immunity cannot be maintained for every policy
o Need to distinguish btw governmental policy decision and operational implementation is clear
 True policy decision should be exempt BUT implementation should not
 Policy:
 Public official under no duty of care in relation to decisions which involve or are dictated by
financial, economic, social or political factors or constraints (ie. Budget allocations etc)
 Usually made at high level
 Implementation: An Action/inaction that is a product of administrative direction, expert/professional
opinion, = not exempt
 The manner and frequency of these inspections is an operational decision
 Consideration of duty of care should be kept separate from consideration of standard of care
o Ie. Duty of care owed to take care of road. Standard of care different than if it was a private person cleaning their
own sidewalk, crown has kms of highway, standard must be lower
 Standard of care must be assessed in light of budgetary restraints, availability of personnel + equipment
 Conclusion: Duty of Care met, New trial to determine if R had met standard of care
Concern: If deciding how often/how is an operational decision, then the threshold is too high for policy decisions.
Brown v. British Columbia (261)
Facts: Lost control on the highway, where multiple accidents had recently occurred. Police officer had called for gravel trucks but
they did not arrive. Brown sued for not having the proper operational methods in place to ensure the highway was maintained.
Issue: Does the government have a duty of care to Brown?
Decision: No, the decision was a “classic” policy decision
18
Reasons:
 The gravel trucks did not come because Gov using summer schedule w/ fewer employees = policy decision bc related to
availability of workers/budgetary constraints/negotiations with union/involves array of social, economic, political factors.
 Therefore, there cannot be liability.
Ratio:
Class explanation: Little distinction between Just and Brown, but completely different outcomes. Raises concerns over consistency.
Swinamer v. Nova Scotia (269)
Facts: Tree fell on Swinamer while driving. Tree fell due to fungal infection difficult to inspect. Not enough funds to remove all the
trees. Engineer had employee count all trees necessary for removal (200), only afford 66.
Issue: Does the department of transportation owe a duty of care to Swinamer?
Decision:
Reason:
 Department of transportation responsible for maintenance of the highway. Swinamer claims they should be liable.
 TJ: they did owe a duty of care and was negligent. Focused on lack of expertise to inspect trees.
 SCC: It was a policy decision and therefore, not duty of care owed. But does not know scope of problem, needs to count
trees to become aware of funds needed. Classic policy decision on “how are we going to allocate department funds?”
Ratio: Policy Decision
Post-Cooper Jurisprudence
Anns Test:
 At First Stage: Whether harm is Foreseeable? Whether there is sufficient proximity?
 Residual policy consideration (Consider policy/operations dichotomy here)
Case Law:
 Later cases have been unable to find sufficient proximity bc the court looks at the statute which does not indicate
personal relationship btw citizen and entity. This approach is misguided. Should look for proximity btw two parties
involved, not btw statute and individual.
 Possible argument: If court continues to focus on statute to find duty, statutory duty does not equate to common law
duties.
Fullowka v. Pinkerton’s of Canada (151)
Reasons:
 Started with statute
 Distinguished approaching cooper from case at hand
 To find proximity: Not the same concerns of indeterminacy, small group of people working at mine, inspectors at mine
regularly, inspectors statutory duties related directly to the claim being made. (Duty to ensure the mine was operating
safely)
Class Explanation: One of the unique cases where court is looking beyond statute and more closely at relationships.
Municipal Government Act (276)
2) Standard of Care: General Principles
A) The Common Law Standard of Care: The Reasonable Person
 Who is the Reasonable Person?
o A person of normal intelligence whose conduct is the standard by which the Courts measure the
conduct of all other persons.
o In court situation argument for the ”judge” as the reasonable person..
 Forces judge to think outside their own perspective
 Bolsters impartiality in the justice system
 Purpose of Reasonable Person?
o Need for objective measuring test, for certainty
19


Tension btw recognition of differences of background/objective benchmark: if we don’t have benchmark, it is
too easy for people to excuse themselves and avoid compensating victim
Has an emergency materialized?
o Has the D’s fault led to this emergency?
o An emergency could not have been anticipated
Basically: P 309-310 clear explanation of how standard of care works. (RE-READ)
1. Does conduct create unreasonable risk?
2. How would the reasonable person act in the context of gaging a misconduct?
3. Apply the facts to various standards.
4. Take into account external factors (custom/statute etc)
 Conduct is negligent if it creates an objectively unreasonable risk of harm
 To avoid liability person must exercise standard of care that would be expected of one who acts in
reasonable/prudent manner
 Measure of what is reasonable depends on the fact – including likelihood of known or foreseeable harm, gravity
of cost,
 Some may look to external indicators of reasonable conduct including custom, statutory standards
Bolton v Stone 1951 p 102
Facts: Stone hit on side of road of residential houses by ball of cricket player on ground across the highway. Trial judge:
members of club not liable on grounds of negligence or nuisance. CA reverse decision and say that D guilty of
negligence.
Issues: What is the nature and extent of the duty of a person who promotes on his land operation which may cause
damage to person on an adjoining highway?
Decision: Appeal allowed. No negligence.
Reason:
 Blyth: Negligence: “omission to do something which reasonable man guided upon considerations which
ordinarily regulate conduct of human affairs, would do, or doing something which is prudent and reasonable
man would do.”
 Donoghue: You must take reasonable care to avoid acts or omissions which you can (1) reasonably foresee (2)
would be likely to injure your neighbor.
 1) Reasonably foreseeable? Yes. Accident had happened before.
 2) Whether the risk/likelihood of damage to person was so small that reasonable man, considering matter
from point of view of safety, would have thought it right to refrain (due to cost) from taking steps to prevent
danger? Yes. Bolton not guilty of any culpable act or omission.
Ratio: If risk/likelihood of foreseeable harm to a person is so small, it is reasonable for one to refrain from taking steps
to prevent that risk.
Priestman v Colango 1959 p 107
Facts: Priestman officer chasing stolen car. Fires shot to blow out tires. Hits bump. Misses and Injures/kills pedestrians
at bus stop Colango.
Issue: Is the police officer negligent and liable for the injuries sustained by Colango? Was Priestman’s behavior
reasonable?
Decision: Priestman’s behavior was reasonable. The proximate cause of the fatal injuries Colango sustained was the
negligent and criminal conduct of Smythson (thief) – not the police officer.
Reason:
1. Every police officer is required by law to do anything for enforcement of law if he acts reasonable and probably
grounds, is justified in doing what is required to do and can use as much force as necessary for that purpose.
2. Not merely performing an act permitted by statute, but engaged in performance of what was a duty imposed
on them - Does not relieve those exercising statute powers of duty to take reasonable care in exercising them
20
3. But: he did take reasonable care, firing of second shot was reasonable attempt to shoot tires to stop car. NO
other method
4. Performance of duty imposed on officers may involve risk of injury to other members of community. Such risk
is imposed by statute, and is damnum sine injuria (Injury w/ no damages)
5. Unreasonable that such blow-out would have injured person 100 yards distant
6. Legislature contemplated that exercise of statutory power and discharge of duty interfere with private rights,
so if person to whom power is given and upon who duty is imposed acts reasonably, such interference will not
give rise to action
7. Dissent: this law is not supposed to protect police from charges by public, but from charges by offender they
were chasing.
Ratio: If person acts reasonably under statutory power and required performance of duty, there can be no rise to
action
Note: Colango also made claim against Smythson. Court said the fact that he was incapacitated was regardless because
looking at the bigger situation, he was liable.
B) Factors Considered in Determining Breach of the Standard of Care
1. The likelihood of being injured
a. The lower the likelihood, the less concerned the court will be concerned
2. Gravity/Seriousness of harm
a. Where the gravity of the harm is more serious, the reasonable person adjusts their behavior and acts
differently
b. Ie. One-eyed man working chips metal into good eye. D says he does not usually provide goggles in
that task. Court said, you should have adjusted for his situation.
3. Practicality or cost of avoidance/taking precautions
a. What would be the cost of taking precautions to avoid this kind of harm happening?
b. The lower the harm, the lower the seriousness = less likely that D should undertake high costs to
protect against that harm
4. How important is the activity/what is the social utility of the activity?
a. What is the social cost of not having that activity?
b. Is the activity being carried out to save someone’s life?
5. Law and Economics Standpoint:
a. Learned Hand Formula: If B < P x L, then it is negligent not to undertake B
i. B = burden of adequate precautions: (includes financial $ + social utility)
ii. P = Probability of injury
iii. L = gravity of injury
b. Where P x L is higher than B, reasonable people undertake B
3. The Standard of Care Expected of Children
Class Examples
 Does the common law make allowances for youth?
o Yes
 Do the relaxed standards depend on the activity?
o Adult Activities Doctrine: Holds child to an adult reasonable care standard when they engage in certain
adult activities (operating vehicles/ child-size vehicles if the vehicle has adult-like functions)
o The point of the doctrine – allows the victim to be compensated
o Seniors do not have lack standards bc they have the wisdom to make judgement about safety
8 year old child riding bike collides w/ two other children.
 Questions to ask:
1. Is the child capable of being negligent? Yes.
21
2. How would a reasonable child of like age/intelligence have acted? (Combined subjective/objective
inquiry)
5 year old child: cant answer #1
8 year old child riding child-vespa instead of bike.
Heisler v Moke 1972 p 111
Facts: Child standing on clutch of tractor while steering wheel = crash.
Issue: Whether there was any negligence on the part of the infant child causing the second injury? And if there was,
what was the degree of that negligence?
Decision: No negligence on part of infant child.
Reason:
Was the act of the 9 year old a deliberate act (breaking chain of causation) or a link extending from initial negligence of
defendant?
 Both acts are contributing cases – the act of the child injuring himself further = foreseeable
Was the child guilty of contributory negligence?
 Test: The Reasonable Man. However w/ children other considerations
o Whether the child, due to age, intelligence, experience, knowledge, alertness, is capable of being
found negligent at law in these circumstances? Yes
 To what degree was he negligent?
o What a reasonable child or that age could reasonably be expected to do/foresee?
o In Canada, test is less objective (not just age), more subjective (intelligence/experience)
o Applying either objective or subjective, plaintiff is not negligent. Could not expect to realize that
standing on the clutch would result in damages.
Ratio:
4. The Standard of Care Expected of Person’s with Disability
Class Examples:
 Should allowances be made for persons with disabilities? Yes
 To what extent are disabilities taken into account?
o If they are aware of the limitation, must act in such a way as to accommodate that hearing impairment
(Blackburn)
o If they are not aware of the limitation, they are place are regular “reasonable standard” and therefore,
could not have foreseen incident (Fiala)
 Donna is a waitress, has weak left arm from car accident, spilt soup on child.
o Ask:
 What would a reasonable person w/ that disability have done in those circumstances?
 Would expect her, given that she is aware of the arm, to behave in such a way that is
doesn’t cause a problem
 This is the first time that Donna’s given out on her.
o What would the reasonable person have done in those circumstances?
 This had never happened to her b4, court could not expect her to foresee that.
Negligence and Lawyers
 Rare for barristers to be considered negligent during a trial
 If the lawyer misses a limitation period – easy to sue for negligence
Blackburn v British Columbia 2001 p 114
Facts: Collision btw police vehicle w/lights and sirens that ran red and hearing-impaired driver (plaintiff) proceeding on
green light. P deaf w/o hearing aid – did not hear siren. Cst. Leyh’s vehicle = “emergency vehicle” and had privileges to
proceed past red light and disregard traffic rules under Motor Vehicle Act.
22
Issues: What is the liability between the P and the D?
Decision: Both are at fault, 80% to p and 20% to D
Reason:
 Officer: did not comply with Motor Vehicle Act because took a risk not proportionate to urgency.
 Driver: failed to observe traffic stopped for siren, failed to reduce speed, had radio too loud. It is not negligent
for a deaf person not to hear a siren. But a deaf person driving a car must reasonably be aware that own
safety/others might be affected. Must be visually attentive.
 80% fault to plaintiff and 20% to defendant
Ratio:
Fiala v Cechmanek 2001 p 118
Facts: Macdonald go for run, choke Cechmanek in his car due to unknown bipolar disorder. Cechmanek involuntarily
hits gas, crashes into Fiala’s car. Action against Macdonald pleaded in negligence.
Issue: How do the courts look at mental illness and liability?
Decision: MacDonlad is not liable for actions
Reason:
Confusion of mentally ill in context of tort law:
 Persons suffering from may not have to comply with reasonable person standard – incapable of avoiding the
accident (emphasizes fault requirement)
 If compensation is emphasized, mentally ill should not be allowed to lower standard
o When two innocent ppl involved in accident, person causing damage = liable
o Courts vulnerable to people feigning mental illness (but science can prove). We know more about
mental illness today, should be used in common law
o Relieving mentally ill of 100% liability will result in increased isolation, as community members will
avoid contact for fear of harm w/o compensation
o Consideration of D’s mental illness erodes objective standard
 Argument that emphasis on compensatory tort law= misguided
o Compensation should remain as consequence, not purpose of tort action
o Should focus on corrective justice, where fault is key consideration
o Tort law treats children + physically disabled differently
 TEST: In order to relieve tort liability when D is afflicted suddenly and w/ mental illness, and without prior
notice, D must show:
1. As a result of illness, D had no capacity to understand/appreciate duty of care owed at relevant time
2. As result of illness, D was unable to perform duty of care as he had no meaningful control over actions
(and so can’t be held to standard of care)
Ratio: D must satisfy the onus of showing that #1 and #2 of the test has been met.
5. Standard of Care expected of Professionals





Mistake: Just because a doctor makes a mistake does not = negligence. Difference btw mistake and negligent
mistake. Ask other doctors to determine what the standard of care is
Beginner or Expert: The common law is not concerned with making exceptions for beginners
Generalist or specialist: If the doctor is not yet a specialist but gives specialist advice and holds himself out to
be a specialist, then he would be held against the standard of a specialist, not a GP. (depends if the
diagnosis/guidance falls under specialty)
Conflict btw 2 or more expert advice: If there is expertise supporting both views that doctor must show he has
followed atleast one of the schools of thought (Expert witnesses are extremely $$$)
Time Frame: Must assess diagnosis in relevant time frame, from state of knowledge at that time. Can’t say that
DR. fell below standard of care in past, just because today we have a better approach/ standard of care to this
problem
23
Millette Estate v Zung 2005 p 121
Facts: P sues D for negligence for failing to diagnose bleeding aneurysm which caused his death. Assigned to take CT
scan - but never booked. The CT scan request was unclear as to whether she was concerned w/ the family history of
aneurysm/ urgency
Issue
Decision
Reason:
Plaintiff has onus of proving, on balance of probabilities, all four of the following elements
1) The doctor owed the plaintiff a duty of care
a. Yes- doctor/patient relationship
2) The doctor breached the applicable standard of care established by law
a. Based on “reasonable doctor’s skill, knowledge and judgement”
b. A doctor is not liable in failing to reach proper diagnosis or for administering proper treatment, where
it is a mere error in judgement
c. In Case, doctor followed proper processing for CT requisition form
3) The P suffered injury or loss; and
4) The doctor’s conduct was the actual and legal cause of the P’s injury or loss
a. Whether the new onset of headaches were result of bleeding form undiagnosed aneurysm which let to
his death?
i. Expert evidence: mixed reports. Overall: the type of reported headaches has not usually
indicated aneurysm
Reibl v Hughes 1980 p 83
Negligence vs. Battery
Duty of Disclosure: Informed Consent
 What do you have to tell your patient in order to appropriately inform them?
 Were you told that things may turn out that way? If you weren’t told would that have had an impact on your
decision?
 Ask: What would the reasonable person in the patient’s position want to know before making a decision?
 Patient-centered standard
 In order for the court to determine the standard of care must have expert evidence
Causation (to be discussed later)
6. Custom/ Generally Approved Practice
If everyone is partaking in that practice, then is it reasonable?
What does the defendant have to prove in order to rely on custom?
1. Is there a custom?
2. How persuasive is evidence of custom?
a. If there is a custom, then how many people follow it? (prevalence) How long has it been in place?
(pervasive)
i. Suggests reasonableness
ii. Suggests economic reality (are the safety precautions customary or excessive?)
b. How technical is the custom? (more tech = more persuasive) Or can it be overturned with common
sense?
3. Does adherence to custom settle the issue? (or is adherence unlawful?)
a. If the practice itself is negligent, it does not matter how many people are practicing that custom, the
court will not uphold it.
Cases for Reference:
**Waldick v. Malcolm, [1991] 2 S.C.R. 456; 1991 CanLII 71 (S.C.C.): Plaintiff falls on icy Defendant’s drive way. D argues
that nobody in their community puts ice on their driveway (custom) and P would have been used to that reality. Court:
24
Not enough evidence to establish existence of custom and the custom was unsafe/unreasonable/unlawful/negligent court does not uphold custom over law
**ter Neuzen v. Korn,[1995] 3 S.C.R. 674; 1995 CanLII 72 (S.C.C.)
Custom or general practice is almost always going to be determinative when you are dealing with professional
negligence context. Except where the practice itself is fraught with obvious risks. (Echoed by Milette)
7. Statutory Standards
What is the effect (in the context of a negligence action) of a breach of a statutory standard?
 The statute might explicitly create or preclude civil liability
 What if the statute is silent on the issue?
R v Saskatchewan Wheat Pool (p 292)
Facts: CDN wheat board suing Wheat Pool for delivering infested grain to the wheat board. Wheatboard incurred costs
from fumigating wheat and attempted to recover these from Wheat Pool. Canada Grain Act: Offence to deliver
infested grain.
Issue: Does this give rise to duty of care or breach of that duty?
Reason:
Court did not like either of these perspectives:
 English: Argument by Plaintiff: Tort of Breach of Statutory Duty
o Writing into intent in legislature that is not implied.
 American General Position: If you breach a statutory duty, that = negligence
o Allows for creation of strict liability approach – accused might not actually be negligent, simply reasonably
breached a duty
Court chose:
 Minority of American Position: The statute might provide reasonable conduct/ inform standard of care, and breach
of this may be useful evidence that the D was negligent
Ratio: Breach of a statutory standard can be evidence of negligence, up to court to weigh duty created by statute in
relevance to context w/in the claim. + Determine how persuasive this evidence is to find if the plaintiff has breached
the statutory duty of care.
If there is a statutory duty and they followed its = useful evidence
McGeek Enterprises v Shell Canada 1991 p 301
Facts: McGeek suing shell. Bought land from person who bought property from shell that used to be gas station, soil
smelled like gas. Had Clayton and Dr. St. Pierre review land - cost $21,0122. The Gasoline Handling Act of Ontario
requires owners to remove tank and remove contaminated soil and fill cavities to grade level w/ clean soil. P argues
that there is contaminated soil on it and D is in breach of the regulation. P submits that he would not have incurred the
costs of investigating site had D complied w/ regulation.
Issue: Whether or not he could recover the costs he incurred in soil testing.
Decision: Unable to find any liability on the D.
Reason:
Take standard from Sask. Wheat pool: It is not a tort to simply breach a statute.
Purpose of Act: What relevance does this obligation have in respect to the standard of care.
Finding: Was the defendant negligent in failing to remove any identifiable trace of gasoline?
 If negligence law requires you to leave nothing so it seems the site was a gas station = too high (he would have to
excavate 18 ft of soil very $$$, impractical and unnecessary)
 The standard is too onerous.
 The standard of care requires reasonable conduct. To follow the statute requires far more than the reasonable
standard. It is not reasonable to get the prior owner to take the time if the property can be safe without doing so.
25
The statutory standard can be useful evidence in reaching what the standard of care is, but it does not dictate. The
closer the relationship btw the alleged negligence and the obligations, more the statutory standard will weigh.
- P could have protected interest by inserting warranty in agreement, did not do so. Much more desirable that such
interests be protected in that manner than imposing civil liability for failure to meet a statutory standard that may, for
all practical purposes, be unattainable.
Ryan v Victoria 1999 p 304 (How important is it that someone comply with statutory duty, can they shield
themselves from negligence if they do that)
Facts: Effect of statutory authority on the civil liability of railways. Motorcyclist injured while going over railway gap in
rails. Longstanding rule that standard of care owed by railways to public was limited to performance of statutory
obligation. Railway argue no statutory obligation breached.
Issue: Should that rule be discarded? Whether railways are liable in public nuisance?
Decision: Yes discard rule. Railways are liable in public nuisance.
Reasoning:
Why does longstanding rule exist: Railway was important for development of Canada – we don’t want to make it easy
to sue railway companies.
Trial judge: Flangeway on store street not in statutory duty. R negligent for failing to build “Flangeway” at minimum
allowable width + railways liable under public nuisance because hazard created was not inevitable consequence of
performing any statutory duty
BCCA: R comply with all applicable regulations = not negligent to store street tracks. Railways not public nuisance bc
protected by defence of statutory authority
SCC: Duty of care owed by railway with respect to public ccrossing is determined, as it is for other private and public
actors, under 2 step test (Anns v Merton London Borough Council 1977)
5. Is there sufficiently close relationship btw parties and the person who has suffered so that in reasonable
contemplation of the D, carelessness on its part might cause damage to that person?
6. Are there any considerations which ought to negative/limit the scope of the duty, the class of persons to
whom it is owed or the damages which a breach of it may give rise?
(USE Anns Test when there is a novel application of the duty of care context)
Standard of Care: a statutory breach does not automatically give rise to civil liability (Wheat Pool) SO mere compliance
does not preclude finding of civil liability
 McKay: safety measures of railway act exhaustive, railway could not be held liable for failing to take precautions by
those
 Barclay: In event of exceptional danger, railway required to take greater safety measures than those officially
prescribed
 Above cases yield to combination of both to make current rule: Paskivski: Railway duty of care is limited to
statutory obligations unless there are special or exceptional circumstances, which in even of common law duty of
care will require additional precautions or safeguards
 Mckay/Barclay rule abolished and railway subject to ordinary principles of negligence. Owed duty of care to
appellant. Their compliance with regulatory standards did not replace/exhaust that obligation. They were
negligent with respect to the flangeways. The store Street tracks created unreasonable interference w/ public’s
use and enjoyment of store street and therefore constituted public nuisance
Ratio: Statute is helpful but does not give us the full picture.
8. DEGREES OF NEGLIGENCE





Liability will only be found in certain circumstances where the defendant has acted with gross negligence
Courts looking for marked departure from standard of care. How far below the standard of care did the defendant
fall?
Effect of gross negligence: P must work harder to show there was a breach, a “gross” breach
Rational for requiring “Gross negligence”: to protect activities of high social utility
Gross negligence is exceptional and can only be applied through statute
26
Municipal Government Act p 276
S 531 (1)
Snow on roads
531(1) A municipality is only liable for an injury to a person or damage to property caused by snow, ice or slush on
roads or sidewalks in the municipality if the municipality is grossly negligent.
 Protect city against lawsuits where it is not realistically possible to clean all roads/sidewalks perfectly.
Emergency Medical Aid Act (p 238)
Protection from action
2 If, in respect of a person who is ill, injured or unconscious as the result of an accident or other emergency,
(a) a physician, registered health discipline member, or registered nurse voluntarily and without expectation of
compensation or reward renders emergency medical services or first aid assistance and the services or assistance are
not rendered at a hospital or other place having adequate medical facilities and equipment, or
(b) a person other than a person mentioned in clause (a) voluntarily renders emergency first aid assistance and that
assistance is rendered at the immediate scene of the accident or emergency, the physician, registered health discipline
member, registered nurse or other person is not liable for damages for injuries to or the death of that person alleged
to have been caused by an act or omission on his or her part in rendering the medical services or first aid assistance,
unless it is established that the injuries or death were caused by gross negligence on his or her part.
Purpose: Encourage people to help eachother out in cases of emergency by taking away liability if you try to help and
things go poorly
3) Proof of Negligence
1. The Burden of Proof




The P has a burden of proof in a negligence action.
The standard of proof is: on a balance on probabilities (50% +1)
o Its more likely that the events occurred this way
How does Plaintiff perform this burden?
o Evidence
o Inferences: Logical conclusion that one can draw from existence of other facts
o Presumptions: Default position; a rule that finding of a particular fact can lead to existence of a presumed fact
Is it always the P’s burden? No
o The onus of proof can be shifted, by statute or common law
 Example: Traffic safety Act: 185: When driver contravenes traffic safety act + gets in accident, onus on
driver to probe that contravention did not cause accident
 Example: S 186: When driver hits pedestrian, onus is on driver bc. Plaintiff has little proof of what
happened.
Nice v John Doe 2000 ABCA p 280 [Onus shifts on D in accidents, inference of negligence to be disproven by him]
Facts: Appeal addresses onus of proof and extent of duty owed by a public carrier to its passengers. A fell on city bus and was
injured. Action for damages was dismissed.
Issue: Whether TJ erred in failing to shift burden to, or failing to draw inference against, the City with respect to the main issue in
dispute ie. The reason for the sudden stopping of the bus.
Decisions:
Reasons:
 TJ: do not know why bus has stopped, so cannot say that it was negligent driving or not. If it stopped for a child running
across road = not negligent.
o Onus on P to prove negligent driving.
o Concluded that due to recent case law, it was not open to her to shift burden to D to disprove negligence
o Not possible for P to prove on a balance of probabilities that her injuries were caused by negligence of driver =
action dismissed
27




Appeal Argument: Where there is accident + injury, burden shifts to bus to prove it was operating vehicle in skilled and
prudent manner.
Analysis:
o Standard of Care in bus cases
 “to carry her safely as far as reasonable car and forethought could attain that end
o Shifting the burden: fall on the bus comes within “accident”, therefore bus most prove it was operating bus
properly
 Shift justified because:
 Passengers entitled to expected safe transportation
 Driver knows whether it is being driven properly
 Encourage buses to properly report after incident
 Drivers have high duty of care and responsibility
 Accident is presumed to establish prima facie case of negligence
o Drawing an Inference of Negligence
 Absent evidence of good reason for stopping, inference will be drawn
Application to the Facts:
o No reason as to why the bus stopped suggested by Bus company = inference of negligence
o Negligence should be inferred based on the evidence
o Cannot be rebutted
Conclusion: because reasons for the stop are still unknown, degree of fault is not possible to assess, liability should be
apportioned equally.
2. Res Ipsa Loquitur



“The thing speaks for itself”
Unless D can give you explanation of how event happened, and its consistent with his negligence, then ask court to draw
inference to apply the doctrine and agree that “thing speaks for itself”. Now – onus on D, to explain how this happened
without his negligence.
Used in circumstances where P has no direct evidence as to how or why the incident occurred.
Fontaine v BC (Official Admin) 1998 SCC p 287
Facts: P’s husband = passenger in D’s truck. 2 months later truck is found in creek bed off the road. Both parties were dead. P’s
Argument: D is driving, only way he came off highway, must be that he was driving negligently: the thing speaks for itself.
Reasons:
TJ: In circumstances, this is neutral evidence. Does not suggest negligence.
SCC: Justice Major:
 What is done when there is only circumstantial evidence?
 When D is in control of situation, and likelihood its negligence, then D would be liable.
 Lets put aside res ipsa
 Instead: The trier of fact should simply weigh all the evidence. Depends on how TJ allocates weight to that evidence.
Burden of proof still on P.
 Whether an inference of negligence can be drawn is highly dependent on circumstances of each case
 The TJ looked at circumstantial evidence – potential evidence is that vehicle is not on road anymore. Taken with other
info (ie. Road conditions) not enough to lead to conclusion that inference of negligence was not drawn.
Note: Although the court said doctrine is expired, seems to still be in play
3. Breach of Statute
The Queen (Canada) v Saskatchewan Wheat Pool 1983 SCC [Violation of statute is evidence of negligence on part of
D]
Facts: Canadian Wheat (CWB) seeking damages from Saskatchewan Wheat (SWP) for delivery of infested grain out of terminal
elevator contrary to s 86 of Canadian Grain Act. Board gave Pool infested wheat. Visual inspection revealed no infestation. A
funnel test indicated infestation. Board sues for cost of unloading, reloading and fumigation (100k)
Issue: Relation of breach of statutory duty to civil cause of action?
Decision: Dismiss appeal
28
Reasons:
 Civil consequences of breach of statute should be subsumed in the law of negligence
 The notion of a nominate tort of statutory breach giving right of recovery merely on proof of breach and damages should
be rejected
 Reject view that unexcused breach constitutes negligence per se giving rise to absolute liability
 Proof of statutory breach, causative damages, may be evidence of negligence
 Statutory formulation of duty may afford specific, useful, standard of reasonable conduct
 Case at hand: negligence neither pleaded, nor proven = fail
o Canadian grain act does not contain express provisions for damages for holder of terminal elevator receipt who
gets infested grain.
o Does not give rise to independent tortious conduct
o No argument for statutory negligence: an intentional or negligent failure to comply with statutory duty
o Inspection procedures followed as required. Pool successfully demonstrated that loss was not result of any
negligence on their part.
4) Causation




1.
2.
An expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury of
the victim in order to justify compensation of the latter out of the pocket of the former
o Element that P has to prove: a connection btw D’s negligence and the injury
Whether the D’s conduct caused P’s loss?
The Standard Test: “But for” Test
Exceptional: Material Contribution test
Introduction
 The defendants breach of duty must be causally connected to P’s injury
o Reasons:
 In contrast to a no-fault compensation program: negligence law must focus on causal inquiry.
 It is the infliction of injury through the wrongdoing of another that entitles a person to full
compensation, which must be provided by the wrongdoer who Caused the injury
 Steps:
o First determine factual causation, then look to proximate cause, remoteness etc.
o Second: what losses flowed from the injuries that the P suffered?
Establishing the Causal Connection
 But For Test
 If it can be proved on a balance of probabilities that Ps injury would not have occurred BUT FOR the
defendant’s negligent conduct, the causal connection is established
 If the damage would have happened anyways, D is not guilty
o Ex. Matthews v Maclaren: D was relieved of liability w/ respect to a passenger who died as a result
of falling into cold water from D’s boat, since it could not be established that D’s negligent rescue
attempt was a factual cause of the death
 He may have died of shock
 If it could have been shown that a reasonably conducted rescue probably would have
saved the deceased = causal connection
 Is evaluative and speculative
o Requires ToF to predict what would have happened to P, had D not acted unreasonably
 Court must guess at what would have occurred, using its best judgment, intuition,
common sense, experiences, expert evidence or whatever else might be of assistance
 Criticisms:
o Too all-encompassing to be very useful
o All causes which can be shown to contribute to P’s injury
 But many are eliminated due to lack of duty, accidental, or too remote
 Also, issue of causation arises w/in context of litigated dispute. Court is only interested in
P’s contention that D’s conduct was one of those responsible factors
29
General Principles
Snell v Farrell 1990 SCC p 318 [P has to prove that D created a risk that the injury would occur and the injury did
occur = justifies an inference that D’s conduct caused P’s loss. Trier of fact does not need medical certainty to draw
inference of causation]
USED BUT FOR TEST
Facts: Dr. Farrell giver Elderly Ms. Snell eye surgery on right eye. After injecting eye, it started to bleed. Eye atrophied, injuring
optic nerve = blind in right eye. Experts could not prove reason for atrophy. P had suffered stroke in her eye, which may have
caused result. Unclear what caused the stroke.
Issue: Whether the P in malpractice suit must prove causation in accordance with traditional principles or whether recent
developments justify finding liability on basis of some less onerous standard. (Whether A was liable for loss of R’s vision in right
eye?)
Decision:
Reasons:
 TJ and CA relied on McGhee which states: P has to prove that D created a risk that the injury would occur and the injury
did occur = justifies an inference that D’s conduct caused P’s loss.
o Move away from: Standard “but for test”: P must prove on balance of probability, but for tortious conduct of D, P
would not have sustained injury complained of.
 TJ: D was negligent in continuing operation after bleeding. P had prima facie case of causation and burden shifted to D to
disprove. D could not perform this burden and was found liable. Upheld on appeal.
 Causation: SCC
o Should use “But For” but with “robust and pragmatic approach”
o McGhee reverses ordinary burden of proof due to complexities of proof, probable victim of tortious conduct
would be denied relief
o Allocation of burden of proof is determined by substantive law upon broad reasons of experience + fairness
o Proof of causation in medical malpractice is difficult for P
 McGhee promote robust and pragmatic approach to facts to enable inference of negligence to be drawn
even though medical/scientific expertise cannot arrive at definitive conclusion (combines reversal of
onus theory and Inference interpretation theory)
 D can rebut the inference.
o Only adopt McGhee based on facts. No evidence to rebut finding that injury was caused by retro bulbar bleeding.
o Note: Medical experts use certainty, law is lesser standard “balance of probabilities”
Ratio:
 #1: P has to prove that D created a risk that the injury would occur and the injury did occur = justifies an inference that D’s
conduct caused P’s loss.
 Court can make finding of fact in certain circumstances.
 Not essential to have conclusive medical opinion to support finding of causation.
 It is common sense to draw inference where circumstances permit.
Note: McGhee argued that he had skin condition due to lack of showers at work. Court concluded that employer was negligent in
failure to provide washing facilities. But experts told the court that P could have developed Dermatitis either way. Court decided
on ratio #1 stated above.
Athey v Leonati 1996 SCC p 326 [Thin skull rule applies. D is liable for injury, even though there were pre-existing
non-tortious contributing causes]
USED BUT FOR TEST
Note: When there is multiple causes, difficult to apply the But For test
Facts: A suffered back injuries on two car accidents. Herniated disk after mild stretching. Herniation caused by 2 car accidents and
pre-existing disposition. Suing both drivers.
Issue: Whether loss should be apportioned btw tortious and non-tortious causes where both were necessary to create injury?
Decision: Appeal allowed. Judgment for appellant.
Reason:
 TJ erred in failing to hold D fully liable for disc herniation after finding that the D had materially contributed to it. TJ
apportioned causation, % to pre-existing condition. This form of apportionment is uncommon.
o Once proven that D’s negligence is cause of injury, no reduction of award to reflect the existence of nontortious background causes.
30
o The thin skull rule reinforces this conclusion  “you take your victim as you find them”
CA erred in failing to reverse TJ’s error. CA refused to consider arguments bc they were not before TJ.
o Well established principle that D is liable for any injuries for which the D’s negligence is a cause.
 A may not raise a point that was not pleaded at trial unless all the relevant evidence is in the record
o It was part of record. Point raised by A was merely point of law
o R did not suffer prejudice from this.
o Defence argued that disc herniation was not causally related in any way to injuries suffered from car accidents.
Ratio: Thin skull rule applies. D is liable for injury, even though there were pre-existing non-tortious contributing causes.
Key Point: As long as D’s negligence was a cause beyond de minimis, it does not have to be the only cause for the defendant to
have to be responsible for it.

Resurfice Co v. Hanke 2007 SCC p 332 [But for test used in most situations. Material contribution test used in
exceptional circumstances.]
USED BUT FOR TEST
Facts: Mr. Hanke mixed up water hose w/ gasoline. Badly burned. Claimed it was due to design defects of ice-resurfacing machine.
Sue manufacturer.
Issue: Did Hanke meet foreseeability and Causation requirements?
Decision: Decision for manufacturer No foreseeability or causation for Hanke’s injury.
Reason: McLachlin CJ
 Foreseeability
o Liability for negligence reqs breach of duty of care arising from a reasonably foreseeable risk of harm to one
person, created by the act or omission of another
o TJ found it was not reasonably foreseeable that operator would mistake gas for water (Due to different size of
tanks and labels).
 CA: TJ failed to give sufficient analytical emphasis due to various aspects of P’s evidence.
 SCC: CA can only interfere if there were palpable and overriding error.
 CA: TJ failed to consider policy matters, the seriousness of the injury and relative financial positions of
the parties.
 SCC: erred in suggesting that these matters are relevant to foreseeability. Depends on what a
reasonable person would anticipate, not the seriousness or depth of pockets.
 SCC: CA erred in interfering
 Causation
o TJ concluded that there was no evidence on balance of probabilities that this event was caused by D
 CA: TJ erred in failing to conduct a proper contributory negligence analysis.
 CA: TJ erred in applying but for test, instead of material contribution test.
o SCC:
 Comparative blameworthiness
 Should look globally at all possible causes, not just D’s negligent act.
 Since TJ found that it was Hankes carelessness that was responsible injuries, and design defects
were not responsible, no need to engage in contributory negligence analysis
 Test for Causation
 Basic test is But for test: applies to multi-cause injuries. P bear burden of showing that But for
the negligent act or omission of each D, the injury would not have occurred. Then, contributory
negligence can be apportioned.
o Recognizes that compensation should only be made where substantial connection btw
injury and D’s conduct is present
 Material contribution test can be involved if two requirements met: (In exceptional
circumstances)
o 1. Must be impossible for P to prove that D’s negligence caused the P’s injury using
But for Test (due to factors outside of P’s control)
o 2. Clear that D breached a duty of care owed to P, exposing P to unreasonable risk and
P must have suffered from injury.
 Example situation (2 shots fired at P from 2 culpable Ds, impossible to say
which shot injured him)
o If these two conditions are met “liability may be imposed, bc it would offend basic
notions of fairness and justice to deny liability by applying the “but for” approach.
31
Ratio: But for test used in most situations. Material contribution test used in exceptional circumstances.
Notes: Interpretation of this case on future cases is confusing. Questions whether they were speaking to dependency causation?
Clements (Litigation Guardian of) v Clements 2010 BCCA p 336 [But for test used in most situations. Material
contribution test used in exceptional circumstances]
BUT FOR TEST
Facts: Clements injured while riding as passenger on motorcycle. Motorcycle speeds up, ran over nail, wheel deflates. Both thrown
off. Expert unable to say whether speed + weight contributed to accident TJ found him negligent because 1) motorcycle driven at
excessive speed and 2) motorcycle overloaded. But TJ not satisfied that but for excessive speed and weight motorocycle would not
have capsized anyways. Applying MC test = causation established. Mr liable for injuries of Mrs.
Issue: Should Material Contribution or But For test have been used
Decision: Not appropriate use of material-contribution test.
Reasons:
 Once TJ failed to prove causation under BF test, he should have dismissed action. But because it was impossible to use BF
test, he used MC test. WRONG.

P must establish on a balance on a balance of probabilities that injury would not have occurred but for negligence of D
 MC test is not for determining FACTUAL causation. Only Legal Causation – ie. When there is a possibility that D’s negligent
actions could have been a factual cause.
o It is policy driven rule of law designed to permit P’s to recover in such cases despite failure to prove causation.
o MC should only be used in situations of circular causation and dependency causation
 When it is impossible to determine which of 2 negligent parties caused the damage suffered by the P
 Or when proof of factual causation depends on establishing what one party would have done if another
party had not acted in a negligent manner
 - Drawing on article written by legal academic
 - Can use MC test when we think the result doesn’t seem fair
 Case at hand: Once P failed to established that motorcycle would not have capsized but for D’s negligence, he should not
have found causation. It is not circular or dependency causation.
Ratio: MC causation should be used in cases of circular causation and dependency causation. It is for when it is impossible for P to
prove factual causation, but legally and per policy, D should be liable.
Clements v Clements 2012 SCC p 347 [MC only applicable where P has shown factual causation by a number of D’s
and cannot exactly show which specific D caused injury]
Reasons:
 Canadian Law:
o Generally: P cannot succeed unless she shows as a matter of fact that she would not have suffered the loss BUT
FOR the negligent act of D. Scientific proof of causation is not required.
 This is a FACTUAL determination
o Exceptionally: P can succeed by showing that D’s conduct materially contributed to risk of Ps injury where P
has shown injury would not have occurred but for all the D’s negligence and she cannot exactly show that any
one possible tortfeasor in fact caused the injury.
 Even if they can’t recover when “ but for” test is not/cannot shown to be met
 This is a LEGAL determination
 It can be used WHEN: its impossible for the P to show via the but for test that D’s negligence caused the
injury.
 “Impossible” = when there are 2+ tort feasors, all of whom acted negligently, and all of whom
exposed P to an unreasonable risk of injury
 Application:
o TJ should not have insisted on scientific reconstruction evidence for but for test.
 If P can’t prove causation on “but for” standard, should have stopped.
o Parties did not receive trial based on correct legal principles = new trial
o MC test is consistent with corrective justice… Compensation, fairness, deterrence
Dissent: (leBel)
 No basis in fact or law for ordering new trial.
 TJ said it would be unable to prove BUT for D’s breaches, she would not have been injured
 Yes, MC test was inappropriate
32


Should be mindful of need for finality and efficiency
No basis for inferring that the overloading of the motorcycle and excessive speed could have been the “cause” of the
accident as that term is understood in the context of the But For test.
Note: If it probably would have happened anyways – the P must fail
Ediger v. Johnston 2013 SCC p 356 [Faced with conflicting evidence of causation, TJ must weigh evidence to
determine if balance of probabilities met; TJ can draw inference, even if there is contradictory evidence]
Facts: Cassidy suffered from damage caused during birth due to slowed baby’s heart rate. TJ found that Dr breached standard of
care by failing to ensure back up surgical staff and failing to inform mom of material risks associated with forceps procedure.
Issue: Whether TJ committed palpable and overriding error in determining that Cassidy’s injury was caused by these breaches? Did
the forceps attempt create this problem, or could this have happened in any event?
Decision: Decision for Cassidy. Dr negligence caused her injuries.
Reason:
 Action for negligence requires proof of duty of care, breach of standard of care, compensable damage and causation
 Dr. argues that causation not met.
o Would Cassidy’s condition arisen independent of procedure?
o In Alternative, He met the standard of care in the forcep procedure and injury still occurred.
 P must show that but for the D’s negligent act, injury would not have occurred.
 TJ did not address the gap in time btw forcepts attempt and onset of disease, but there is a displacement theory that
accounts for this..
 Faced with conflicting medical evidence, Holmes J had to weigh evidence before her and determine whether Cassidy had
proven causation on balance of probability – Yes
o 1. Expert evidence consistent with what happened
o 2. Expert evidence says that forceps is dangerous and carry this risk
o 3. Close proximity in time of forceps and disease support conclusion that forceps attempt was connected
o MUST draw an inference on this evidence. D argues that she should not draw an inference because it could have
happened anyways or for other reasons: cord may have kink, cord wrapped around infants neck, short cord
 Standard of care not met bc. Dr acted in a manner that disregarded risks. He was required to take reasonable precautions.
 Need not consider whether he breached duty by not warning mom of risks, since failure of not having surgical back up
caused Cassidy’s injury.
Ratio: Faced with conflicting evidence of causation, TJ must weigh evidence to determine if balance of probabilities met.
Note: Scientific certainty not required. TJ has right to draw inference. Even if there are other possible reasons, TJ still open to draw
inference. TJ not required to give all expert evidence the same weight.
Fullowka v Pinkerton’s of Canada p 168





CA found that TJ made 2 errors in his analysis of causation: he applied wrong legal test for causation and wrongly
considered the conduct of the co-defendants collectively rather than individually
Hanke v Resurfice corp held: That absent special circumstances, the plaintiff must establish on the balance of probabilities
that the injury would not have occurred but for the negligence of the defendant
This case does not fall into the class of exceptional situations, (does not pass 2 step test)
Neither Pinkerton nor the gov breach its duty of care towards the murdered workers
The but for standard should have been, but was not applied by TJ
Factual Uncertainty: Alternative Approaches: Establishing Cause in the Difficult Case


a.
Its unclear what exactly led to the particular outcome
Expert evidence: their standard of proof is higher, Judges make decision based on lower standard of certainty
Athey v Leonati: The Basic Propositions
 Facts: P has history of back pain, gets into car accident, began treatment and recovering then second car accident.
Continued treatment, then while exercising several months later suffered herniated disc, requiring surgery
 Case History:
o P sues drivers who caused accidents
o Ds argued herniated disc was not caused by them, but by exercise and P’s pre-existing weakness
o TJ: Accidents contributed, but were minor contributing factor and awarded P 25% of damages
o SCC: Court held TJ erred and awarded P full damages
33

b.
c.
SCC Decision:
o General Principles in tort to issues of causation
 1. But For Test, on BoP, is general test for causation
 2. But For test does not require that D’s negligence be the only condition necessary to cause the P’s
injury 
 Ds whose acts were necessary parts of causal consequence, subject to remoteness, will be fully
liable for injuries
 Where other causes were non-tortious = D’s will bear the entire burden
 Where other causes were tortious = apportionment btw ds
 Where other cause was D’s fault = contributory negligence
 3. D’s only liable for injuries that were caused by their negligent acts (look to proximity + remoteness)
 4. Thin Skull Rule: D is liable for full extent of P’s injuries, even if they are more serious due to preexisting susceptibility or vulnerability of P. (Question of legal cause, not factual cause)
 5. Crumbling skull scenario: D is liable only for injuries and losses that p suffered as a result of D’s
negligence. If P would have suffered same consequences anyways, due to degenerative process that
might have caused them, = taken into consideration
Making it Easier for Plaintiffs: Alternatives to the “But For” Test
 If there were several possible causes, including D’s negligence, but no probable ones = Difficulty for P
 Courts may be able to jettison some aspects of the But For test
The Material Contribution Test: What is it and When does it Apply
i. Introduction
 The But For Test is unworkable in some circumstances
 Courts recognize that causation is established where D’s negligence materially contributed to the occurrence
of the injury (Major J in Athey)
ii. The Defendant’s Negligence was one of Several Necessary Causes
 Material contribution: used by some judges as a way of illustrating application of But For test to an injury
which has more than one contributing cause
 Used in this limited sense, the expression of “material contribution” is not an alternative to the But For test,
but an application of it
o This is how it was applied in Athey
o Resurfice Corp v Hanke: ABCA held that because there was more than one potential wrongful cause
of Ps injury, BF test was unworkable, and warranted MC test.
 SCC corrected them in Walker Estate: cannot turn to MC test, simply when there is more
than one potential cause of injury
iii. The But For Test is Unworkable
 Impossible for P to established on BoP that D’s negligence was a necessary cause of the injuries which P
suffered
 P must be unable to satisfy BF test for particular and restricted reasons
 Court does not always abandon BF + let P use “easier” test
iv. Walker Estate v York Finch General Hospital
 Facts: P contracted HIV due to infected blood supplied by D. P argued: Had D used a more effected screening
process = prevention of donation.
 Applied But For Test, but stated in obiter:
o Material Contribution: “A contributing factor is material if it falls outside the de minimis range
v. Materially Increasing the Risk of Injury: McGhee v National Coal Board
 D’s negligence caused the P’s injury by materially increasing the risk that the injury would occur
 Facts: P employed at D’s brick works and contracted dermatitis.
o Argued that failure to provide washing facilities was negligent, unable to show on BoP this was
necessary factor in Dermatities, could have happened anyways since he worked all day covered in
dust
o Evidence that lack of washing facilities materially increased the risk of the P contracting dermatitis
34
Snell v Farrell 1990 SCC p 318 [Do not need medical/scientific certainty to find causation, based on balance of
probabilities]

Allows inference of cause to be drawn even where there is no scientific evidence or other probative evidence of a
probable connection btw negligence and injury,  is in effect to accept the principle of McGhee
Fairchild v Glenhaven Funeral Services 2002 (HL) [HoL willing to flex rules when its unfair for P to bare entire loss]







USED MC TEST
Employers negligently exposed employees to asbestos, and now they have cancer caused by asbestos.
Employers owed a duty of care to employees not to expose them to asbestos dust at work = breached duty
Exposure occurred only at work, and mesothelioma could not have been caused as a result of non-work exposure
CA: They can’t be successful because they can’t establish causation, bc did not know which employer asbestos came from
House of Lords: In situations like this, we can apply the material contribution standard and make all the employers
responsible. It should not be the P’s problem to bare the entire loss bc each D can point fingers at the other
Courts flexing rules = difficult to draw clear boundaries when it is okay to make changes, must be precise
Walker Estate v York Finch General Hospital 2001 (supp) [MC test could be applied in this type of dependency
situation]




USED BF Test
Claim against Canadian red cross. But for negligence in failing to properly screen donors, I would not have contracted HIV
D: What if we did screen + ask all the right questions, and the donor went ahead and donated anyways?
o Someone else did something wrong that led to the same outcome = Dependency issue
o The donor testified at trial and said, had I been asked these questions, I would not have donated blood.
Court uses admittance of donor to effect BUT for test. But stated that if they did not have evidence of donor, its possible
that MC test could be applied.
Sindell v Abbott Laboratories 1980 (Cali)







Class Action claim brought by women who had mothers who ingested drug called DES while pregnant. Advertised as being
able to prevent miscarriage.
Caused serious cancer in reproductive organs of daughters who were exposed to the drug, when they were adults.
Unable to know which manufacturer of DES their mom purchased from
Decision: Defendents must share liability for damages proportionate to market share.
P would only be able receive damages from possible brands their mother took.
Fair result
It would not be fair to leave P without payment
5) Remoteness
General Principles





Used to limit D liability where D act is far removed from P injury
Remoteness only an issue after Doc, SoC, causation and legally recognized loss have been made out
Not necessary to foresee the chain of events leading up to the injury
Thin Skull Rule – TO DETERMINE FORESEEABILITY: Even if injuries to Pl are more severe than was reasonably foreseeable,
the D is still liable
o Damages: The court is not going to necessary the thin skull rule P’s injuries in the same way as a regular person.
 If injury would have resulted in death in 10 years, D not required Damages beyond that point.
Crumbling Skull Rule: Recognizes the pre-existing condition of the P. a D is liable for injuries caused even if they are
extreme, need not compensate P for debilitating effects of pre-existing conditions that the P would have suffered from
anyway. However – accelerating a condition that the P would have suffered from anyway is actionable.
Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co. Ltd. (The Wagon Mound No. 1) 1961 p 366 [Must use
foreseeability test, not directness test]
Facts: Furnace oil in water. A welder ignites it and it cause extensive damage. It was finding of fact that it was not foreseeable that
the oil could burn on water.
35
Issue: Should use test of directness or test of foreseeability?
Decision: Use test of foreseeability
Reason:
 Decision in Re Polemis = directness test bad law = defendant was responsible for all consequences of his act, whether
foreseeable or not
 Damage must be of such a kind that the reasonable man should have foreseen
 Direct consequence test leads to nowhere, must be foreseeable
 Fire was a Direct result, but does not make sense to hold D responsible.
 Viscount Simonds:
o Not consonant with current ideas of justice that actor liable for all consequences, no matter how unforeseeable,
so long as they are direct
o A man must be considered responsible for the probable consequences of his act
o Unfair to hold people liable for grave and unforeseeable consequences of trivial acts of negligence
 Court wants to equate blameworthiness w/ extent of consequences; uses foreseeability to do so
Ratio: Must have foreseeability to be liable.
Hughes v. Lord Advocate 1963 p 367 [Not necessary to foresee the manner in which an injury occurs if the type of
injury is foreseeable]
Facts: Manhole left open with tent and surrounding paraffin lights. Boy kick light into hole = explosion = he falls in and is burned.
Decision: That children might be burned was foreseeable, even if exact manner in which it occurred is not.
Reasons:
 Held that workmen in breach of duty of care to safeguard by from known source of danger, the lamp, was reasonably
foreseeable, although that source of danger acted in an unpredictable way.
 Foreseeing the manner in which the injury occurs is not necessary bc the type of injury was foreseeable
Ratio: Not necessary to foresee the manner in which an injury occurs if the type of injury is foreseeable.
Note: Foreseeing framed this was is equivalent to directness.
Smith v. Leech Brain 1962 (371)
Facts: Man hit by piece of molten metal in the lip. Pl. brought an action after husband developed cancer and died.
Decision: Burn reasonably foreseeable, D is responsible for cancer and death
Reasons:
 Causation between the metal and the cancer was made out.
 Court decided the burn was reasonably foreseeable therefore; the Def is still responsible for his cancer and death.
Mustapha v. Culligan of Canada (374) [Reasonable foreseeability Test for mental distress: 1) Probable 2) Objective
damage too remote if breach would not have resulted in psychiatric harm of reasonable person]
Facts: M purchased bottled water from Culligan for 15 yrs. Saw dead fly in water. Caused him significant psychological harm.
Sueing for nervous shock resulting from negligence of Culligan.
Issue: Was the injury reasonably foreseeable?
Decision: Appeal allowed
Reasons: (McLachlin)
 To get recovery for psychiatric harm must prove there was duty owed, breach of standard of care, resulting damage,
causation and sufficient proximity
 Clear that duty of care owed (Donoghue)
 Culligan’s conduct breached duty
 Resulting damage = major depressive disorder which significantly impacted his life.
 Remoteness: If the breach would result in psychiatric harm to a reasonable person? If Yes, then thin skull rule applies.
o Due to decision in Wagon Mound, test for remoteness is “reasonable foreseeability”
 Reasonable means more than possible, has to be probable, + an objective inquiry
 #1: Probable: legitimate possibility that reasonable person would see it as more than trivial risk
 #2: Objective: A reasonable person of “ordinary fortitude” could foreseeably suffer from psychiatric
harm in these circumstances.
o No question that breach would not result in psychiatric harm of reasonable person.
 However, if Culligan had known of Mustapha’s vulnerability, then this type of damage would be reasonably foreseeable
36
Note: Court may have pre-existing concern about psychological claims. Courts seem to be creating distinction, by creating a
threshold, btw mental and physical injuries.
Intervening Forces
Novus Actus Interveniens: Whether or not, when a third party acts to exacerbate or increase the degree of injury, whether the D
will be responsible for full extent or third party action breaks chain of action?
Intentional Wrongdoing
Stansbie v Troman 1948 p 378 [Decorator owed duty to make premises secure, burglary was reasonably foreseeable]
Facts: Decorator hired by P. D negligently left his house unlocked. Thieves come and burglar it. D sue P fro not paying him to
decorate, and P sue for value of stolen goods.
Issue: Whether it was reasonably foreseeable that leaving a house unlocked, is it foreseeable that a thief could take items?
Decision: In favour of homeowner.
Reasons:
 The decorator owed a duty to leave the premises in a relatively secure state. Reasonably foreseeable that it could be
burgled.
 If someone actually had to “break in” that would draw more attention.
Intervening Medical Error
Is Original D responsible for the erroneous medical care?
Mercer v Gray p 377 [As long as error is not result of Drs’ negligence, then D must pay all damages that result]
Premise: Reasonably foreseeable that if you are injured you might need to seek medical attention, and foreseeable that things can
go wrong.
 Distinction btw Medical Error that is error in judgment, or medical error that is negligent.
 If a medical error occurs, D is liable for all injuries that result.
 If Dr is negligent, D is no longer liable. The Dr. Becomes liable for those damages.
Note: If P took reasonable care to employ competent physician to treat personal injuries inflicted by D, results of treatment fall
under D’s damages, even though error in treatment is unsuccessful.
Note: 18-20% Ps who sue a Dr. will be successful in their claim. = Hard.
Suicide
(Pre Mustapha – courts did not need to apply “ordinary fortitude” test)
Wright Estate v Davidson 1992 p 379 [Suicide found to be intervening cause – questionable law]
Facts: Wright involved in MVA in 1986 – caused by D’s negligence. 8 months later, Mrs. Wright commit suicide. Claim brought
against D for wrongful death.
Issue: 1) Factual causation: was the MVA the cause of the suicide? 2) Was the suicide too remote to ground liability?
Decision: 1) Suicide was factually caused by MVA, 2) Death was not reasonably foreseeable, D not liable for suicide
Reasons:
 If Injuries caused by the D led to mental disturbance leading to suicide  D liable
 If injuries caused by D did not lead to mental disturbance but a deliberate act of disturbed individual then it is a novus
actus and D is not liable
 Court here is saying that suicide was voluntary ie. Her judgement was not impaired.
Note: Generally: Suicide is not an intervening act, and the D is liable. If you are committing suicide, can you really be ever said to
have a sane mind?
Costello v Blakeson 1992 p 383 [Suicide not found to be intervening cause, bc court applies thin skull rule]
Facts: Involved a suicide attempt 3 years after an accident.
Issue: Was MVA cause of suicide attempt?
Decision: Yes, it was the cause.
Reasons:
 P had prior history of depression and suicide attempts
 Court applies thin skull rule, this does not have to be reasonably foreseeable, must take victim as you find them
 Damages: Crumbling skull – D is liable only for the acceleration of the suicide attempt - given P’s history it is likely that
another suicide attempt would follow at some point. D sped this up.
37
Note: Weird court thoughts: Giving money to survivors of suicide seems to condone suicide.
Decision: P denied recovery bc intervening act
Policy and the “Instinctive” Approach


Imposing liability taking into consideration the circumstances of the D/P, the seriousness of the injury
Should we have critical concerns to the approach to negligence law in general? What can we do about it?
Palsgraf v Long Island Railroad p 172 [Andrews J: when facts are bizarre/freakish]
Facts: Employee pushed passenger on train that had explosives and exploded and caused scale to fall on victim.
Issue: Cardozo J: Whether or not a duty should be owed to the injured plaintiff?
Whether
Decision: No duty of care owed, not foreseeable.
Reasons: (p 175-176) Andrews J, proximate cause – looking for natural and continued sequence btw negligent event and injury.
 Was D’s negligence a substantial factor?
 Was there a fairly direct connection?
 Was the harm foreseeable?
 How remote in time or space is the conduct?
 TEST allows for judge to choose any outcome. They don’t seem to have enough concrete substance to dictate a particular
approach.
Response to above: Allen Linden “Foreseeability in Negligence Law” supports above
 Freakish accidents do not lend themselves to effortless resolutions by ready-made rules – it is not logic. It is practical
politics
 Foresight should not be an irrelevant consideration. It suggests only that other matters, in addition to foreseeability,
deserve attention.
 Acknowledging that the test we currently use is not workable in all cases
 Remoteness should only be used in clear cut cases, not in “bizarre” or “freakish” cases
Meah v McCreamer (no 1) 1985 [Instinctive approach, P successful, difficult to reconcile with no2]
Facts: Man was severely injured by drunk driver in MVA, severe brain damage, serious personality change = very violent. 4 yrs later
 Brutally attacked and assault 3 women. He had a history of theft, but not violence. Evidence showed personality change was
attributable to brain damage caused by accident. P sentenced to life imprisonment. Sues driver for damages of spending 20 yrs in
jail (loss of enjoyment/amenities)
Decision: Wolf J: P was successful, awarded 150k
Note: 2 of the women he assaulted sue him, and are each awarded 20k
Meah v McCreamer (no 2) 1986[Instinctive approach, P unsuccessful but on similar facts, inconsistency difficult to
reconcile with no1]
Facts: P went back and asked D to compensate him for having to pay damages to victims of assaults. Aka requesting indemnity.
Decision: Wolf J: Too remote, judged by instinctive approach.
Reasons:
 Policy reasons: many victims, wants to create compensation fund for innocent victims. Part of the reason the J awarded
damages in first place was so that women could sue and recover damages, and to provide for P’s family.
 If you allow a claim like this to go ahead, opening door of flood gates
 Not in line with tort policy to allow P to be indemnified
Note: Later judge finding it difficult to reconcile the two decisions
Lamb v Camden Borough Council p 388 [Judge applies instinctive feelings” to issue of remoteness]
Facts: D’s employees burst pipe in P’s house causing him to move out during repairs. Squatters move in and cause damage. P
claimed for damages for water and by squatters
Decision: Damage was reasonably foreseeable, but too remote
Reasons: Watkings J used the instinctive approach
38
6) Defences to an Action in Negligence
Contributory Negligence



Steps:


Used to be full defence, now it’s a question of apportionment
Last clear chance rule: If the P was the person with the last clear chance to avoid injuries = lose, if D was last, then D
would lose.
Apportionment legislation applies to a situation of multiple tort feasors (separate legislation in Alberta = Tort Feasors Act)
o Legislation directs court to assess how responsible each party is.
o NOTE: when dealing with multiple D’s on an exam, do not say other defendant’s were contributory negligent!!
They are just negligent.
P has a duty to look out for their own safety.
Is the Plaintiff negligent? And did that negligence contribute to injury suffered to him?
Contributory Negligence Act RSA 2000 p 414


Last clear chance rule abolished
If the court cannot decide on apportionment of liability they are equally liable (50%-50%)
Seatbelts


Generally, you will be negligent for not wearing seatbelt
Exception:
o Not enough seatbelts for teenagers in the vehicle, car rolled over. D argued she was contributorily negligent for
not wearing seatbelt. Court held that in this context it was not negligent because it was late, had no other option
to get home. Not conclusive that you are negligent if you don’t wear a seatbelt.
Galaske v O’Donnell p 414 [Duty to wear seatbelt, generally always negligent to not wear a seatbelt]
Facts: Driver, father, and child in car – whose responsibility it is to ensure that child is wearing seatbelt?
Issue: Is it contributory negligent not to wear a seatbelt?
Decision:
 There is a duty to wear a seatbelt
 It seems it will always be negligent to not wear a seatbelt. If the failure contributed to the injury then they will be found
to be contributorily negligent.
Heller v Martens 2002 p 416 [Proper approach to apportionment of CN is comparative blameworthiness]
Facts: D ran stop sign and collided with Milk delivery van, P not wearing seatbelt (milk truck drivers not req’d to do so). TJ found
that driver was contributorily negligent and apportioned 25%.
Issue: CA asked how to we allocate that percentage?
Decision: The proper approach is comparative blameworthiness.
Reason:
 Two Approaches
o Causation approach: To what extent did each party’s negligent play a causal role
o Relative blameworthiness of each parties action
 Act says: when Damage or loss has been caused by 2 or more person, court shall determine degree to which each person
was at fault.
o ABCA decides relative blameworthiness approach is the that should be used.
o Causation approach creates same problem of “last clear chance rule” – which has been explicitly excluded in s
3.1.
 Does not address primary objective of tort law, ie. Compensation and deterrence goals
 Relative blameworthiness factors include:
o The nature of the duty owed by the D
o The # of acts of negligence of the person
o Timing, who was first at fault?
39
o
o
Nature of the conduct
To what extent did the conduct breach statutory requirements?
Cochrane v Morrish 2003 p 423 [P not contributory negligent bc not foreseeable that he would be hit by car]
Facts: Cochrane was young man in 20s, goes to 7/11 to buy cigs, wife stays in car. D (teenager) arrives with number of friends
(Drunk), driving his mom’s car. Pull up beside wife in car, start hitting on her. P comes out, sees wife is anxious. D’s friend makes
comment at P ‘nice ass you have”. P goes over to window, friend repeats comment, P punches him through open window. Guy
says comment again, P punches him more. D pulls out fast, knocks over P and injures his knee.
Issue: Is P guilty of contributory negligence?
Decision: No, P is not contributorily negligent
Reason:
 D found to be negligent in his driving
 Was the P negligent? P not acting as reasonable person would
 Is there causation? Did Ps action contribute to his injuries? There was factual causation but there was not proximate
cause (not reasonably foreseeable that actions would result in car running him over). Some form of injury may have been
foreseeable, but it is only the type of harm that occurs that must be reasonably foreseeable.
Voluntary Assumption of Risk (volenti non fit injuria)






Complete defence
Risk = Includes physical and legal risk ie. Risk that D will negligently harm/injure the P
o Difficult to prove waving of legal risk
Tension: court wants to compensate P, but where VAR is clear courts want to give effect to parties’ intentions.
Agreements
o D must prove P agreed to exempt D from liability.
o To be effective: must clearly describe the risk involved; can be written or oral, express or implied
 Note: a written agreement is evidence, not prima facie proof
“Willing Passenger” cases (initially found to be implied agreement  no longer good law)
o In the past, this was seen as an assumption of risk if you knew the driver consumed alcohol and voluntarily got in
the car. Today not enough to just get into the car to show voluntary risk, courts would apply contributory
negligence.
Waivers of Liability
o Must be made aware of waiver, drawn to your attention, and you understand what you are signing.
Nettleship v Weston p 427 [Nothing short of an express or implied agreement to waive liability as to the required
standard of care will suffice]

Knowledge of, or willingness to take a risk is insufficient
Illegality





Ex turpi causes non oritur action = from turpitude no cause of action can arise
Courts not prepared to enforce tort duty that arises from illegal action  ensures judicial process is not undermined
Complete defence
Can be raised by courts own motion, even if D does not bring it up
Examples:
o BC v Zastowny
 Was a criminal, in prison, he got abused in prison and when he came out he committed crimes because
of abuse, and got send back to jail again causation established. So then he claimed for lost wages for
being in jail court said no way! Principles of criminal law are punishment, retribution, we don’t
want to clash principles of criminal and civil law
 One cannot be compensated for a lawfully given prison sentence because it would create conflict
within the branches of the law and negate the punishment given by the criminal courts.
o Can’t inherit if you murder your parents
40
Hall v Hebert p 428 [Defence of illegality applies only to purely profit driven criminal activities]
Facts: 2 young men drink and drive. Both tried to jump the car, when they lost the keys. Non-owner tried, but lost control and car
flipped. Friend discovered he had a head injury as a result, sues car owner.
Issue: Do they get compensation?
Decision: SCC on appeal ends defense of illegality for personal injuries, now applies only to purely profit driven activities (drug
dealer)
Reason:
 No question that P is profiting. Money aimed at way of compensating.
 When would this be applicable:
o Someone is trying to avoid criminal penalty by getting money from courts in negligence claim. Ie. Cannot sue
fellow bank robber.
 P should not be denied damages for his injuries, will be punished separately for illegally driving drunk
Ratio: P gets compensation for personal injury because it is separate from illegality of driving. The fact that he was doing
something illegal before, does not bar him from getting compensation.
Limitation Periods





Limitations Act is a defence, on onus of D to raise it
If you fail to bring the claim within the time allowed, it is time barred
o Reasons:
 Evidentiary problem
 Business should be able to carry on affairs and no longer threat exists
 Must look at issue in terms of law at the time of act  threat of bringing bad law into present times
Limitation periods always found in Statutes (Limitations Act or in specific act)
Start Dates
o Contracts: The date the contract was entered into is the starting date
o Negligence: Date on which cause of action arose (vague, gives flexibility)
o Discoverability: P became aware or ought to have become aware of fact that they suffered injury
 Ie. Car injury, or poor building takes a couple years, or lawyer drafting will negligently wont become
apparent until testators death
 Appreciate risk of evidentiary problems, or creating longstanding threat of liability BUT adopts approach
that aids lesser of two evils
Example: Manitoba Medical Act
o Medical Malpractice liability of physicians: Action must be commenced within two years from the date when
those professional services terminated.
o Note: Sometimes courts can use discoverability, sometimes statute does not permit it as above
Limitations Act p 434
Section 3 (1)(a) If a claimant does not seek a remedial order within 2 years after the date on which the claimant first knew, or in
the circumstances out to have known, i) that the injury had occurred ii) that the injury was attributable to conduct of the D and iii)
that the injury, assuming liability on the part of the D, warrants bringing a proceeding.
Section 3 (1)(b)or 10 years after the claim arose (10 year maximum!)
Section 3 (3)(b) 
(a) a claim or any number of claims based on any number of breaches of duty, resulting from a continuing course
of conduct or a series of related acts or omissions, arises when the conduct terminates or the last act or omission
occurs;
(b) a claim based on a breach of a duty arises when the conduct, act or omission occurs;
(c) a claim based on a demand obligation arises when a default in performance occurs after a demand for
performance is made;
(d) a claim in respect of a proceeding under the Fatal Accidents Act arises when the conduct that causes the
death, on which the claim is based, occurs;
(e) a claim for contribution arises when the claimant for contribution is made a defendant in respect of, or incurs
a liability through the settlement of, a claim seeking to impose a liability on which the claim for contribution can be
based, whichever first occurs;
(f) a claim for a remedial order for the recovery of possession of real property arises when the claimant is
dispossessed of the real property.
 Concern over having a 10-year limitation period for adults, then justifying inconsistency of time given to minor.
41
o
o
Minor’s ability to pursue claim against parents vs. lack of evidence
Policy rationale for having ultimate 10 years limitation
Section 5(1)  The operation of the limitation periods is suspended during any period of time when claimant is under disability.
(2) Claimant has burden of proving that the operation of the limitation periods was suspended under this section
 For people who suffer from permanent mental disorder, limitation act is “suspended” for their entire life.
Section 5.1(2) Operation of limitation periods is suspending during period when claimant is a minor
 Minor needs “guardian” to litigate with. Litigation may be against parents. = conflict.
7) Assessment of Damages
Introduction / Purposes of Damages Awards in Negligence
Types of Damages








Nominal Damages: Actionable without proof of damage. Example: Trespass claims. Court is recognizing the legal wrong,
but there are no damages to compensate. (Unusual to sue for this bc of litigation expenses)
Compensatory Damages: Seek to compensate P losses (personal injury or property). The most common: aim is to do the
best you can to restore P to original condition
Aggravated/Exemplary Damages: Rare. Awarded to reflect P loss as result of D conduct. Example: humiliation by D
conduct
Punitive Damages: Rare: Not compensatory. Meant to punish the D for their “outrageous” behavior. Amounts to a fine
payable to P
Special Damages: Capable of precise quantification at the time of trial. Compensate for things already occurred. Example:
out of pocket expenses, missed work, travel. (must be specifically outlined in the claim)
General Damages: Things that have not yet happened but will require compensation. Vague. Example: Loss of enjoyment
of life etc.
Pecuniary Damages (Can be used similar to Special Damages): Monetary Damages. Example: Lost earnings/capacity,
future personal care, repair costs, disability equipment
Non-pecuniary Damages – Non-monetary (Can be used similar to General Damages): Examples Humiliation, loss of
enjoyment of life, loss of life expectancy, pain & suffering
General Principles:





P has to prove they suffered a loss in order to get damages. Must prove quantum
Principle of Mitigation: P has to act reasonably in an attempt to mitigate their losses. If by reasonably attempting to
mitigate, they make things worse, that is compensable. If they successfully mitigate then these avoided losses are not
recoverable.
o Example: P suffer injury. P could have surgery 70% chance of success and 1% chance of quadriplegia. P declined.
Court held that the refusal was a failure to mitigate.
“Set-off”: D is entitled to set-off parallel expenditures. Example: if P is claiming full cost of nursing care the D can attempt
to prove this should not include expenses they would have incurred anyways (food, accommodation etc).
Damages are awarded as lump-sums. Makes assessment difficult as inflation, interest rates and the P future needs all
have to be estimated.
Heads of Damage: specified in decisions (As opposed to global sum) so that it is transparent on appeals.
Andrews v Grand & Toy Alberta 1978 p 450 [Appellate Court are entitled to change the damages award, but must do
so with hesitancy and justification]
Facts: P injured by D while on motorcycle. P became quad, but was 25% contributorily negligent. At trial he was awarded 1 million,
this was reduced to 0.5 million on appeal. P appeals to SCC.
Issue: What was P able to claim for future case costs?
P argued that he wanted to live at home and experts testified this would be best. D argued this was excessively expensive and CA
agreed.
 SCC restored the trial award. SCC said the 1 million was reasonable; the focus should be on the needs of P, not sympathy
for P or fears of expense for D.
42
Compensatory Damages for Personal Injury
Introduction
Andrews v Grand & Toy Alberta p 450
Pecuniary Loss: Future Case



1.
2.
3.
4.
5.
Attempt is to fully compensate P by giving them the amount they need.
Issue: P wants to live at home. SCC agrees that consideration of “extra” expense of living at home to the D should not be
the focus, should be needs of P.
To Assess Future Care Costs:
Determine the basic sum. How much per month? Personal attendants, disability modifications etc.
Determine length of time care will be required. Actuarial evidence.
Assess contingencies. Can be +/-. What additional injuries can be expected? Will they improve?
Capitalization rate
Gross-up for taxes. The income on awards is taxable although the award itself is not.
Pecuniary Loss: Loss of Earning Capacity


What the person would have earned, subtracted from what they earn now.
Takes into account negative/positive job prospects, likelihood of forced early retirement, likelihood of getting sick
anyways. Positive contingencies: unexpected wage growth, likelihood of success, how long are they likely to work for,
industry standards for retirement age etc.
1. Determine the earnings that P would have made, less the amount he can still earn.
2. Determine the length of expected working life. Calculate total and deduct “set off” expenses.
3. Assess contingencies. Unemployment, promotion etc. Courts often assume this balances out.
4. Capitalization Rate: take into account what person will earn on investment, account for inflation
5. Tax Consequences are ignored.
Note: the worry might be greater of over-compensation vs. under compensation. Furthermore, if they invest the lump sum of this
money properly, this may outweigh negative contingencies
Note: Acknowledging gender gap btw earning = perpetuating stereotypes. Courts bases income on male income.
Difference btw future case costs award = diminishing fund, that will be at point when P dies.
Loss of Earning Capacity = Courts attempt to reflect that loss with damages award
What if P is not earning?
McCabe v Catholic Separate School 2001
 TJ concerned that the assessment not reflect historical inequalities. CA responded that it was not the D job to rectify this.
TJ ignored the evidence that she wanted 4 children.
Non Pecuniary Loss



Andrews held use of Functional Approach: Aim is to provide reasonable solace for misfortune, to make life more
endurable. (Andrews sets cap on those damages)
Place upper limit on non-pecuniary losses (“capped” it)
Andrews: $100,000; in 2013 its $350,000 .
Collateral Benefits



Received by P from a 3rd party as a result of the accident to offset P’s losses in some way
Government disability, charity, family, 1st party insurance, employee benefits – how do we treat these?
3 Approaches
1. Accumulation Approach: P recovers full damages from P and keeps all other payments too. The P is
overcompensated, but often the collateral benefits are things the P contributed to/paid premium for
2. Deduction Approach: Value of collateral benefit is deducted. The D is then liable for only the “net loss” of
the P
3. Subrogation Approach: P receives one payment. The D reimburses the collateral source. The fund receives a
kind of windfall.
43
a.

When an insurance company reimburses P pursuant to contract of insurance, the insurer is entitled
to a subrogated claim. The Insurer can piggyback on Ps claim and they can also get paid back by D
too
i. Has no effect on D. Insurer is paid back from total sum of damages awarded to P.
Key: Want to avoid the P from collecting twice for the same loss – avoid Double Recovery
o Case where police officer has been paid full wages after he couldn’t work, and is then claiming damages for lost
wages. The court said D would pay lost wage minus the amount that the po had been paid since the injury.
o Should disability benefits be treated as collateral damages? Or should the P give it up? In this case, the Courts
agreed that the employee gave consideration of a right for the disability benefits.
 If P has given up something in exchange for these benefits, the Court may allow P to keep these benefits
even though they are already compensated by D?
Minor Injuries
Insurance Act RSA 2000
Section 3  We deduct collateral benefits in the case of automobile insurance.
Section 4  a) Subsection 3 includes medical, dental, disability, rehab b) medical care, accident and sickness benefits etc.
 In a case where an insurance company has paid benefits, they will not have the right to have a subrogated claim. Why?
Because the court takes into account the amount the insurance paid and minuses it from the damages that D owes, so
effectively, the P losses twice if insurance is then paid out for the amount they put into P. This is a Statutory modification
of the common law.
Minor Injury Regulation AR 2004
1(h) “minor injury”, in respect of an accident, means
“Sprain, strain, Wiplash Associated Disorder”
 Wiplash Associated Disorder is NOT minor when there is demonstrable clinically relevant neurological signs, a fracture to
or a dislocation of the spine
 Note: Attempts to prevent P’s exaggerating small injuries
Section 6  the total amount recoverable for non-pecuniary loss for minor injuries is maximum $4000.00. (Pain & suffering
damages, loss of enjoyment of life)
 Note: Insurance companies would have to increase premiums to account for exurbanite non-pecuniary losses, if we had
no cap on these.
Is it fair to cap non-pecuniary losses in the context of auto insurance, or as we do at common law?
 Common Law:
o Cap on non-pecuniary losses generally is a common law decision by the supreme court, is that over-stepping
their boundary? Achieves social benefit.
o In Andrews, The Cap is applied to the degree of injury, the courts said this is at the extreme end. There will be
cases along the entire spectrum that will be taken into account.
 Statute:
o In Minor injuries, legislature stepped in, because they were worried that most of the minor claims would be
settled on what they could potentially get at trial. The quantums were often 3-4x the amount they should be.
(ie. Sprain would be 12k)
 This has impacted the amount that settling gets to now.
 Has influenced people to not go to trial if they have suffered minor injuries and minor financial loss.
o Detrimental to admin justice by taking up court rooms
o Prevents people from exaggerating injuries
Survival of Actions and Dependents’ Claims for Wrongful Death or Injury



Common Law: If you are killed by result of negligence, your estate, or family members cannot bring a claim.
This has been amended by statute, and now the estate and family can sue for wrongful death.
Note: These claims are derivative: The estate only has a claim if the P would have had a claim. Furthermore, any
applicable defences are still applicable here.
Survivial of Actions Act p 462 [Allows Estate to Bring a Claim or to maintain a claim that was commenced]

Allows for the maintenance of the claim against a tort feasor’s estate if they also die.
44
Section 5  Damages that can be claimed are only those that result in actually financial loss to the disease or the diseased estates
that you can recover. (NO Non Pecuniary Damages)
Not Compensable: Punitive/exemplary damages, Cannot earn loss of future earnings (recently removed through statutory reform),
future earnings, ability to earn
 Note: not always the case that pecuniary damages are ruled out. Depends on the jurisdiction.
Fatal Accidents Act p 463[Allows family members to bring a claim]
 Allows claims by family members (“dependants”)
Section 3  Spouse, Parent, Adult Partner, Child & Sibling
 Can only bring a claim if the deceased would have had one ie. Derivative defences
 Both pecuniary and non-pecuniary losses are compensable.
o Pre-trial pecuniary losses (if they did not die promptly)
o Loss of future support (future earning capacity, loss of financial support)
o Lost value of domestic work that deceased would have undertaken
o Loss of future wealth
Section 8  Non-pecuniary: Bereavement. Statute sets the amounts. These are automatic amounts, don’t need to prove
dependency. Spouse or adult partner gets 75K, parents get 75K, each child can claim 45K.
 Ie. If member who died was bread-winner = this is large claim.
Pecuniary Damages

Not meant to compensate P. They want to send message to D about unacceptable nature of their conduct.
Whiten v Pilot Insurance Co 2002 SCC (Supp) [Punitive damages
Facts: Property consumed by fire, family forced to flee in night. All contents destroyed, got frostbite. Insurance company persisted
in claiming that the fire had been deliberately set. All investigations showed that fire was an accident. The longer the insurance
company dragged its heals, the worse off the Whiten’s were. Insurance company hoping to push them into low settlement. TJ jury
found that insurance company attempting to manipulate situation and awarded 1M$ in punitive damages and client-solicitor
costs.
SCC:
 Issue 1: When do we award punitive damages?
o In circumstances where Def behavior has markedly departed from ordinary decent person
o The objective is Punishment. Straddles civil and criminal realm.
o P is acting as enforcer of public interest and punitive damages recognize the social value of this litigation
o Want to denounce the conduct that the D has engaged in
o ***THIS IS an Exceptional power, they are awarded rarely
 Issue 2: How do we decide who much to award?
o Should be awarded rarely as it is crim law that is more appropriate
o Objectives are punishment, deterrence and denunciation
o Must be awarded with a rational connection
o Aim: Award lowest damages to achieve above objectives
o Appeal courts can reduce if the amount is not rational or measured.
 SCC restores the trial award. SCC looks at proportionality:
o Binnie: I would not have awarded 1 Mil. But it is not outside the factors that are rational. 1 Mill represents very
little of the company’s net worth.
o Is the amount proportionate to the D Blameworthiness?
o How proportionate to the plaintiff’s vulnerability?
o How proportionate is the harm was directed to P?
o Is it proportionate to the need for deterrence? How serious is this problem generally? If a stern message is not
sent, how likely that this conduct will be repeated by them or other Ds?
o Is the amount proportionate to the amount that the advantage the D has wrongfully gained?
o Other civil & Criminal sanctions (ie. Take into account other fines the company would pay, that is factored in –
not directly deducted)
Distinction btw aggravated damages and punitive damages
 A: not aimed at compensating P, aimed at making comment on D’s behavior.
45
8) Pure Economic Loss



Pure Economic Losses: Purely financial loss that is not connected to personal injury or property damage
Courts are traditionally reluctant to allow the P to recover for pure economic loss bc:
o Indeterminancy
 1) Indeterminate number of clients. Who may raise a claim?
 2) Indeterminate amount of time surrounding the claim
 3) Indeterminate extent (damage) of the def liability
o Courts worried about opening the flood gates.
 Is this just shifting the loss from one party from another?
 Is negligence the best way to handle this problem
 Unlike personal injury or property damage is a social/loss that cannot be completely rectified with
dollars vs. PEL: we can completely rectify the amount with dollars exactly
o PEL: Individuals can protect themselves in other ways
 Insure themselves
 Take precautions in a contract
Disputed whether we should allow a general rule to bar PEL from tort law. At CL they are not keen to reward damages for
PEL
Categories of recognized economic loss (Exceptions that allow the PL to recover)
1.
2.
3.


EL due to negligent statements
EL due to negligent performance of a service
EL due to defective products or structures (ie. P finds out something isn’t built well and it is expensive to fix. The
accident hasn’t happened yet)
4. Relational economic loss
5. Liability of public authorities
Why do we approach recovery of economic loss differently than we do personal or property damage?
What is the most significant concern, form a policy standpoint, in permitting recovery for pure economic loss
 Indeterminacy
Negligent Misrepresentation: Required Elements





A duty of care must exist. (Queen v Cognos)
 The duty is based on a ‘special relationship’ meaning that the reliance was foreseeable and reasonable in the
circumstances
The statement or advice was untrue, inaccurate or misleading
Representor acted negligently
Representee reasonably relied on the representation (Goes to our Causation analysis)
Reliance resulted in financial detriment
Negligent Statements (Most significant exception)



Prior to case below: could only get damages if there was a contract or fiduciary relationship.
 You could recover for fraudulent misrepresentation (deliberately misrepresenting) but not negligent
misrepresentation (careless in making lie, but did not intend to mislead P).
Hesitancy to reward negligent misrepresentation
 Dealing with speech = worried about limiting FoE
 Words are more volatile than actions. Words can potentially can have severe continued impact
Possibility for recovery in negligent statements arose in mid 1960s with the:
Headley Byrne v Heller 1963[First Acceptance of Negligent Misrepresentation recovery in Tort Case]





In the particular case, the P was not successful
P wants to extend credit to customers. P asks bank to check into credit rating. D’s Bank said it was a good
business, but denied liability for the correctness of the information. (this is why he lost)
P sues D’s bank bc he lost money bc of the negligent misrepresentation.
Advice was gratuitious. But if it is given and relied upon by the person that receives it, tort law can permit
recovery.
HL: in absence of contract can this type of loss be recognized?
46


Yes. Duty of Care was imposed on someone who gives negligent advice
In this cae, no liability bc the letter absolved the bank of responsibility
Queen v Cognos 1993 SCC [Test for Negligent Misrepresentation]
Facts: P had secure position in Calgary. Moved to Ottawa on representation made during job interview. He was told it would be 2
year contract and good prospects for future. He was not told that the funding was not yet approved. Company scaled back project
and laid him off 18 months later. P claimed he relied on statements of manager during interview that it was a stable job.
Decision: P allowed to recover. The elements required:
Reasons: SCC Set out test for Negligent Misrepresentation to see if P can succeed in the claim.
 Elements required:
1. DoC must exist. Based on special relationship
a. Relationship where reliance on the representation is foreseeable and reasonable in the circumstances
b. Based on foreseeability and proximity, and also where reasonable reliance is possible
2. Statement made must be untrue, inaccurate or misleading
3. Person making statement must have been negligent
4. P must have reasonably relied on representation
5. Resulted in financial loss
 D argued that (1) and (3) weren’t satisfied. There were disclaimers in the employment contract.
o SCC says: it was foreseeable and reasonable that the P would rely on the representation made in job interview.
 Disclaimer does not have effect because does not cover statements made in interview.
Class Notes: Should Tort Law interfere?
 There is pre-contractual agreement found
 Should you be able to sue for damages for moving family etc to job
 He was told in very clear terms that there were clear prospects. Person making them was careless, should not be his
problem ultimately.
 Yes.
 NOTE: even if the manager he asked didn’t know about the funding, he should have found out before making those claims
(= negligence) and if the person doing the interview was really low on the food chain, look at #4 if it was reasonable for P
to rely on it
Hercules Management v Ernst & Young 1997 SCC
 Decided before Cooper and Hobart. So it is the old Anns test
Facts: Investor relied on financial statements produced by D. Reports not produced to comply with statutory requirements, but P
used them to make investment decisions. The reports were prepared negligently and P sued for their losses stemming from
decision based on reports. Shareholders argue that they would not have invested more money in that report.
SCC reinterprets Cognos
 There needs to be a duty based on the Ann’s Test:
o Stage 1: Proximity
 1) Should the D ought to have reasonably foreseen that P would rely on statements?
 2) Was the P reliance on the statements reasonable?
 (He says that he is no need to worrying about defining/finding a special relationship but 2) above
basically does that.  he does so because: Distinction btw personal injury or property damage it is
always reasonable to expect that D will take care to look out for your interests, but in context of
negligent misstatements foreseeability isn’t enough to ground a duty. Reliance must be reasonable in
the circumstances)
o Stage 2: Policy Concerns
 LaForest most concerned about indeterminate liability arising from recognizing this DoC. It would
almost always be reasonable and foreseeable that someone would rely on these reports. They are
circulated widely for many reasons. If a prima facie duty arose, then the liability would be determinate
  even if its prepared for narrow purpose, it still has potential to reach enormous numbers of
people. It would be foreseeable that all people would rely on it, and it would be reasonable for
them to do so.
 It will almost always be foreseeable/reasonable for people to rely on these reports = big
indeterminacy problem. Indeterminate number of claims, to an indeterminate extent for an
indeterminate amount of time.
 Social reasons: don’t want to encourage litigation every time someone loses money. Making an
investment decision is a calculated risk. Not what tort law is for.
47
o

SCC decline to recognize a duty here. But there are exceptions a DoC could arise where:
 1) When an auditor/D knows all the Ps that will be potentially relying on the information
 2) The D relies on the negligent misstatement for the very purpose which it made (here it was made, not
to help out P but just to meet requirements of statute).
NOTE: does this widen or narrow courts approach to negligent misrepresentation. = NARROW.
Whether P’s reliance on the advice was reasonable?
1.
2.
3.
4.
5.
6.
What was the status or skill of the advisor? (ie professional, special skills etc)  if Yes = reliance more reasonable
What was the status or skill of the advisee?
What was the occasion where the advice was given? Was the advice provided in the course of the D business? Or at a
BBQ? Information or advice was given deliberately, and not in a social occasion?
What was the nature of the advice? The more speculative information the less reasonable it is to rely on it. Was it fact or
opinion? What information was conveyed?
Was the info/advice in response to a specific question?
Where the D had a direct/indirect financial interest in the transaction? If yes more likely the court will find it reasonable
Negligent Performance of Services

Example: sue lawyer who negligently prepared the will and now the testators wishes can’t be carried out, and
Beneficiaries are entitled to sue in some cases. Courts want to know if P could have protected himself against the loss
through another method ie. contract. In case below – he could have structured contract better of got insurance. In
lawyer/will case, he could not protect himself from lawyer’s negligence.
BDC Ltd v Hofstrand Frams 1986 SCC [Problem with indeterminacy, + could have protected interests in contract]
Facts: BDC is courier company. Entered contract to deliver envelope (necessary doc to get a piece of land). BDC was late. Hofstrand
loses 77k and brought action against BDC
Decision:
 No DoC owed by BDC to Hofstrand (its also too remote).
 Problem with indeterminate liability.
 No proximity btw courier and P.
 Courier has no idea what was in the envelope or the consequences of late delivery for the P.
 Furthermore, Hofstrand could have protected interests by writing contract with gov. to be more forgiving with regard to
time
Economic Loss caused by the Negligent supply of products and structures

When there is no contract with the D
Winnipeg Condo v Bird Construction 1995 SCC [We will allow recovery sometimes by limiting category of cases by
degree of danger involved]
Facts: Original developer has a contract with D to construct the building. P became new owners, they have no contract with D.
Chuck of stucco fell from building, building require repair (1.5 million). Each condo owner was responsible for share of cost.
Issue: Whether P can bring the claim?
Decision: P can bring the claim; building owners got money
Reasons:
 The situation, if created by the builder’s negligence, is potentially dangerous
 Degree of danger is most important factor in these cases (for economic loss).
 The fact that there is no contract does not decide the issue
 Indeterminacy is not an issue here. Buyer is in the best position to assess the building.
 The people who own the building are foreseeable to the builder’s negligence.
 Policy: we want to encourage rectification of these situations before people get hurt.
o Could have happened at another time of day where they could have gotten hurt
Question: Why might we not want to recognize this duty? If duty is not recognized the parties will take care of it in original
contract. Technically, because contract did not include warranty, the P paid less for it. How risks are allocated in a contract can
affect purchase price.
48
Relational Economic Loss



REL: Losses suffered by one person as a result of a physical loss to another person with whom they had a contractual
relationship
Most contentious area of economic loss b/c it is potentially most indeterminate.
o In example below: A could be a large party
Example:
o Regular: A has a contract with B to use B’s property. C negligently damages B’s property. Now A can’t use it. B
loses the use of the property and therefore suffers financial loss. Can B sue C for the damage C caused? YES
o REL: Because of the relationship btw A and B, A also suffers financial losses. Can A sue C for the damage that C
caused?
CNR v Norsk Pacific Steamship 1992 SCC [Presumption of denying recovery for relational economic loss. 3 categories
of exceptions]
Facts: CNR has contract w/ gov to use bridge. Def was pulling barge in fog and crashed into bridge, disrupting CNR’s use of bridge.
No provision in CNR-Gov contract for the disruption. CNR sues Norsk to recover economic losses.
Decision:
Reason:
 Majority (McLaughlin)
o Recovery in relational economic loss must be limited but should not be impossible
o Look for some connection (proximity) btw P and D
 This is very vague and leads to uncertainty, it cannot be applied prospectively
 There is no predictability in the law if this is the rule and rasks cannot be allocated efficiently
o Need proximity  physical proximity or circumstantial proximity
o Since CNR was the main user, and heavy user
 Minority (La Forest)
o Proximity is TOO flexible
o Maintain rule that denies recovery for relational economic loss.
o Allow exceptions where good public policy reasons exist. 3 exceptions:
 1. P has a possessory or proprietary interest in the damaged thing/property
 2. General Average cases
 3. Situations where the P and property owner are in a joint venture
o Pros:
 Less waste of judicial resources
o Criticism: seems to arbitrarily deny recovery to P; the contract could have been shaped to include protection
Note: McLachlin eventually came around to La Forest’s point of view.
Bow Valley Husky (Bermuda) v St. John ShipBuilding 1997 SCC [If you want to expand the categories, must do an Ann
test]
Facts: Two P had contracted with 3rd P regarding use of oil rig. Contract requires both Ps to pay day rates, even if out of service.
There was a negligently caused. Rig out of service for several months. 2 Ps sue D for their economic losses.
Decision: P’s cant recover because we shouldn’t create new category for them
Reasons:
 How do we determine which cases are not barred by exclusionarly rule?
o 1) REL is recoverable only in special circumstances
o 2) Circumstances can be defined by reference to categories
o 3) Categories are not closed
 What are the Categories?
o 1. P has a possessory or proprietary interest in the damaged thing/property
o 2. General Average cases (Maritime law term)
o 3. Situations where the P and property owner are in a joint venture
 If you wanted to expand these categories: you would look to Anns test
 Bottom line: If P’s could have protected themselves through contract, or another method, then Court far less likely to do
something.
49
Design Services Ltd v R 2008 p 404 [If the party has other methods to allocate risk, a new category will not be
created]
Facts: Gov put forward tendering process. Awarded bid to non-compliant bidder. Olympic (next in line) sues gov for awarding to
someone who did not comply. Design services was part of the company’s that Olympic included in their bid. Design services,
although they didn’t have contract with gov, they also wanted losses addressed.
Issue: Should a new category be created?
Decision: No, the party had other methods to protect themselves
Reasons:
 This does not fall into any of the categories currently existing
o Joint venture? No. In order for the there to be REL claim by design services, there would have to be property
damage incurred by Olympic.
 Court agreed that Design services could have protected themselves by engaging in a joint venture with Olympic.
 Effect of creating recovery here = expectation that you don’t have to look out for your own interests. Tort law is not a
type of insurance.
9) Occupiers’ Liability

Negligence in someone’s home  entry point into the analysis is occupier’s liability
Occupier’s Liability in the Common Law


Who is an Occupier? The Landowner
What is the status of the injured person?
o Trespasser: On land or property without permission of the occupier (broad group – does not look to motive) (ie.
Robber, pedestrian, curious children)
 Do not hurt them on purpose, + must not act with reckless disregard to the trespassers presence
 Due to broad category including multitude of people courts developed:
 Duty of Common Humanity
o How serious and how likely is the trespass?
o What is the nature of the place where the trespass occurred?
o How much knowledge/degree of D has or should have of the that there were
trespassers on the land or likelihood of a D being present?
 Ie. If there an attraction on the property (swimming pool), court more likely
to impose a duty of care.
o Do you know or should you know that the land poses a danger to those people?
o What was the cost to the occupier of guarding against the danger?
 Allowed courts to make judgment calls btw undeserving trespassers and those deserving of
compensation
 Prevented an undue burden on the occupier to protect against
o Licensee: Social guest
 Occupier must take reasonable care to protect licensee from unusual danger
 Occupier is aware or should be aware of the danger
 Note: no obligation on occupier to routinely inspect for dangers, then occupier would owe a
duty to take reasonable care
 Occupier should warn the licensee of the danger to avoid the danger (orally or with a sign)
o Invitee: Patron of a commercial establishment, mutually beneficial financial transaction
 Occupier must take reasonable care to make sure the premises is safe
 Occupier has obligation to make themselves aware of unusual dangers
o Contractual Entrant: Paid for right to enter premises (theatre-goer, hotel guest)
 Occupier owes higher duty than to above categories
 Duty to take reasonable care to make sure the premises are safe
Alberta: Occupiers’ Liability Act
Who’s Who
Occupier:
50

Section 1(C ) Person who owns the premises OR a person who has responsibility for, control over, condition of
premises, activities conducted on those premises and the persons allowed to enter those premises
Visitors:
 Section 1(e)An entrant as of right, lawfully present by contract, any other person there lawfully
 Section 5 duty of care to every visitor to take such care as in all circumstances of the case is reasonable to see that the
visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the
occupier to be there or is permitted by law to be there
 Section 6 Duty of care applies in relation to a) the condition of the premises, b) the activities and c) the conduct of third
parties on the premises
Trespasser
 Section 12(1)occupier does not owe a duty of care to a trespasser
 Section 12(2) An occupier is liable to a trespasser for damages or death that results form occupier’s willful or reckless
conduct
Child trespasser
 Section 13(1) When an occupier knows or has reason to know that a child trespasser is on the premises, and the
condition of, or activities on, the premises create a danger of death or serious bodily harm to that child, the occupier
owes a duty to that child to take such care as in all circumstances of the case is reasonable to see that the child will be
reasonably safe from that danger
Defences
Contributory Negligence
 Section 15 When the occupier does not discharge the common duty of care, and the visitor suffers damage partly as a
result of the fault of the occupier and partly as a result of the visitor’s own fault, the contributory negligence act applies
 Section 7 an occupier is not under an obligation to discharge the common duty of care to a visitor in respect of risks
willingly accepted by the visitor
o Just become it is common practice to not shovel snow, is not an excuse that visitor should assume that risk
Warnings

Section 9 A warning, without more, shall not be treated as absolving an occupier from performing the common duty of
care, unless the warning is enough to enable the visitor to be reasonably safe.
o Must go to the activity
Liability of independent contractor

Section 11 Occupier not liable when damage is due to negligence of an independent contractor
10) Vicarious Liability
What Vicarious Liability?
o
o
VL is a form of strict liability
Liable for someone else’s actions (ie. Employer liable for actions of employee)
Policy Objectives
o
o
o

Benefit/risk rationale: If employer benefits from employee’s actions, they should also bear the risk
“Deep pocket” rationale: Employers have the capacity to compensate
Efficiency rationale: Shifts the losses to the employer who can obtain insurance and recover their losses. Looks to
the entity that can best protect against the loss.
o Deterrence (Safety/accident prevention) rationale: Employers will be motivated to ensure their enterprises are
as safe as possible
Serves as alternative way to find the employer liable
Vicarious Liability at Common Law
TEST: Who is an Employee?
o
Control Test:
51



1) How much control does the employer have over the employee? Do they tell them what to do and
how to do it?
2) Is the person supplying the services in business on his own account?
 Factors:
 Do they have their own equipment?
 Does the employer pay the tax on the employee’s wages? Ie. is he contracted or paid hourly?
 Does the Employer hire their own people?
 Who owns the business?
 Case: 671122 Ontario Ltd v Sagaz Industries Canada Inc 2001
If found to be EMPLOYER, = they should bear financial liability for activities they did not engage in with
regards to the above employee.
TEST: Is Employee Acting in the “Course of Employment”?




The employer can be VL for:
o 1) Act was authorized by the employer (unlikely to authorize intentional torts)
o 2) Unauthorized acts that are so connected with authorized acts that they may be regarded as modes of doing
authorized acts
Are there precedents that unambiguously determine whether the case should attract VL? If Yes = then VL can be imposed.
If no precedent, should VL be imposed based on the broader policy rationales behind strict liability?
o Step 1: Strong Connection Test
 Is the relationship btw the tortfeasor and the person against whom liability is sought sufficiently close?
 Is the wrongful act sufficiently connected to the conduct authorized by the Employer?
 1) What sort of opportunity did the employer give the employee to abuse their power?
 2) To what extend did wrongful act further employer’s aims (and hence be more likely to have
been committed by the employee)?
 3) Was the wrongful act related to friction, confrontation or intimacy inherent in employer’s
enterprise?
 4) Extent of power conferred on the employee in relation to the victim
 5) The vulnerability of the victim to the exercise of the employee’s power
What if the employer is a non-profit organization? Organization is not exempt because it is non-profit.
o Compensate the victim: Although employer does not benefit from D’s actions, it is better for employer to carry
the loss, than the innocent victim
o Deterrence: If non-profits are aware they may be liable for an intentional tort through VL, hopefully they will be
more careful
 Policy objectives outweigh fact that insurance policies might increase.
Crown is no VL for abuse by foster parents against foster children.
 Gov does not exercise day-to-day control over parent. Parent is completely responsible for running of the household
Bazley v Curry 1999 SCC [non-profit Foundation hired Curry, a pedophile, to work in group home. Employment
required him to perform intimate parent-like tasks. Foundation is VL for intention torts of D]
Jacobi v Griffiths 1999 SCC [Through non-profit Boys and Girls Club employee commit sexual assault, taking children
to home, not directly related to job. Organization NOT vl because: Weak connection btw employment and assault
committed]


Club only gave slight opportunity to D to abuse power
He had to take children away from club program to commit wrongful act
John Doe v Bennett 2004 SCC [Priest assaults boys, Strong Connection established]
Facts: Priest sexually assaults boys. Bishop is aware, but does nothing.
Decision: Strong connection exists based on factors from Bazley
Reasons:
o Bishop exercises control over priests, he has the power to remove him/discipline him
o Bishop provided Bennett with opportunity to abuse his power
o Bennett’s wrongful acts were strongly related to the psychological intimacy inherent in his role as a priest
52
o
o
Bishop conferred an enormous degree of power on Bennett relative to his victims
Note: Non-profit does not immunize organization
Vicarious Liability: Statutory
Traffic Safety Act p 494



S 187 (1)  Imposes VL on the owner of a vehicle even if they were not the ones driving it
o VL for persons that have their permission express or implied
S 187 (2)  If you give consent for someone to use your vehicle, than that individual who is driving with your
consent is driving with your insurance policy
Limits the extent of liability to 1 mill$
Mahan v Hindes 2001

Leased Vehicle. Ford Credit Canada was held VL for driver, which gave PL access to deeper pockets.
School Act p 495

S 16 – if property of school board is destroyed, the student and their parents are jointly and severally liable. This
does not apply if the student is independent (+18, or 16 and living independently)
o Normally parent would not be liable
11) Defamation
Definition of “Defamatory”




Protects P’s Reputation, protect against people thinking less of you
Tension between concern about protecting individuals reputations against concern of FoE
Worried that stories that should be told about politician may not be told due to lawsuit for defamation
Common Law based damages on difference btw libel and slander?
o Libel is written/cartoon
o Slander is oral
o Note: Defamation Act erased necessity of this distinction
Defamation vs. Negligent Misrepresentation



Careless words can cause damage – either pure economic loss or physical damage
Can plaintiff claim in both negligence and defamation?
 On one hand, if there is a duty of care owed by defendant then no reason to oust negligence claim just because
there is also defamation
 On the other hand, if the harm is just to reputation, then why not use the specific reputation tort?
Law not settled in Canada, though leans to allowing both
 Double recovery of damages would not be allowed
Foundation of Liability


Defamation is based primarily on strict liability
P must prove that words were said or written.
o P does not have to prove intent to defame, or intent to refer to P specifically
P Must Prove:
1. Material is Defamatory
 Words tend to lower the P in the estimation of right thinking members of society generally (Sim v Stretch 1936)
 Do these words make people think less of P?
 Includes context in which they were spoken
 Drawing, movies, cartoons, billboards, photos
 Considers both literal statements and also innuendo or aim/effect behind words
2. Material refers to P
 Can be express or implied  does not have to mention name, or be aware that it is referring to P
 Questions to Ask:
53
3.
o 1) Is the material CAPABLE of being applied to P
o 2) Does the material refer to P: would a reasonable person conclude it referred to P?
 D need not even be aware of P
 Can P, as a member of the group, sue for words directed at the group? (unlikely)
o Same test: are words capable and would reasonable person in circumstances think they intended to refer to P?
 How big is the group? P must show clear implication that material referred to them individually, not just
group.
 Smaller the group = easier
 How extravagant is the statement?
 What is the context?
 Any Qualifications?
 Can a group sue for defamation? Unincorporated groups do not have rights of natural person. Hateful statements
towards minority are solved with human rights legislation etc.
Material was Published
a. “Published” = communicated in some method to a third party  must understand statement
b. Must be said to 1 individual, other than person statement refers to = statement is published. Every time the
statement is repeated that is another publication
c. Fault Element:
i. Knowledge and fault of D is relevant: D must know content and know/ reasonable to know that material
would be conveyed
ii. Accidental conveyance of information is not considered “publication”
1) Ie. Included something in news story that was supposed to be edited out
2) Ie. Meant to send defamatory msg to P, email screwed up, accidentally sent to everyone
d. Is a hyperlink, by itself, a publication? NO: it refers to the source, but does not actually convey the materials within
that hyperlink (Crookes v Newton 2011 SCC)
Murphy v LaMarsh 1970 BCCA p 468
Facts:
 L wrote a best seller, which was published in 3 editions.
 The first edition contained ‘libel’ against M.
 L had been an MP, and M was a reporter.
 The statement was that M was “heartily detested by mot of the Press Gallery and the members”- no reason for
the detestation is given
Analysis:
 Robinson v Jermyn et al demonstrates that where an innuendo is relied upon to establish defamation, if the
words complained of are capable of an innocent and non-libellous interpretation, then that is the
interpretation that will stand (the action will be dismissed).
 Fair comment defence: the facts upon which the comment is based must be true. If it is not a fact, the defence
will fail. Comments based on matters of opinion will also not afford a defence.
o Therefore, it is not available in this case because the fact has not been proved true, and is therefore
presumed to be false
 The truth or falsity of the words is irrelevant to the determination of the question whether the words are
defamatory.
 The context argument of L failed – the statement did not pertain to the furniture charges by the minister (the
following paragraph)
 Therefore, the statement is defamatory
Class Notes:
 Demonstrates the first stage
o At this stage, it does not matter if the statement was true or not – the statement will still be
defamatory
o BUT if the statement is true, it will provide a defence for the defendant
 There is nothing to suggest that M had done anything wrong
 How do you escape the suggestion that if you are heartily detestable, that there is nothing wrong with you?
o It gives the impression that M is a bad person (because everyone supposedly hates him)
54
o
The reasonable reader would understand this passage to mean that M was a bad person
Ralston v Fomich 1992 BCSC p 471
Facts:
 F was an alderman in the municipality of Surrey.
 R made a statement about council members helping the rich, to which F replied “You’re a sick son of a bitch”. F
later repeated this sentiment to the press.
 F is now attempting to sue the newspaper for reporting this comment.
Issue: Does F’s statement (outside of the meeting) ground liability for defamation?
Decision: YES
Analysis:
 The newspaper argued that protection given to newspapers through s 4 of the Libel and Slander Act does not
apply because the phrase was blasphemous in its origin and meaning
 The court found there was nothing blasphemous about the statement, because under the definition in the Act
it would have to apply to God (which it does not)
 What F said during the council meeting is therefore protected by s 4(1) of the Act.
 But is the phrase “son of a bitch” defamatory when he said it outside of the meeting?
o The words, by themselves, do not have a defamatory meaning. They are simply an insult, but would
not lower people’s opinion of R.
o However, when qualified by the word “sick son of a bitch”, the phrase becomes defamatory because
“sick” imports the meaning of perverted, unwholesome, or morally corrupt.
o When qualified by “sick”, the phrase has the tendency to lower peoples’ opinions of R.
Reference to the P
Booth v BCTV 1982 BCCA p 473
Facts:
 In 1972 the laws regarding prostitution changed. A television host interviewed a prostitute and aired that
interview on TV.
 The prostitute claimed that she often paid police officers to avoid arrest. While she did not name names, she
named certain squads that often got “paid off” and therefore policemen on those squads brought a claim for
defamation.
 The police officers claim these defamatory statements caused their friends, family, and co-workers to believe
that they were dishonest, corrupt, and unfit to act as police officers.
Issue: Can these defamatory statements actually be linked to the policemen who have brought the claim? Were the
statements “published of and referring to” the policemen?
Decision: Only to some of them
Analysis:
 Two questions need to be considered:
o Can the statement be regarded as capable of referring to the plaintiff?  question of law
o Does the statement in fact lead reasonable people who know the plaintiff to the conclusion that the
statement actually does refer to the plaintiff?  question of fact
 The trial judge that only Booth and Donald (2 of the 11 plaintiffs) had a legitimate claim for defamation
because the prostitute said “two on the Narc squad that are high up – right on top”. The trial judge concluded
therefore that the commander and second in command (Booth and Donald) were the only ones allowed to
claim.
Publication
McNichol v Grandy 1931 SCC p 477
Facts:
55
 P had leased a store from M. G was the landlord.
 There was a fire, and an interview afterwards took place between G and P. Allegedly, G slandered P
 W overheard this conversation and heard the slanderous remarks
Issue: Does the fact that W overheard the confrontation constitute publication by G?
Decision:
Analysis – Anglin CJC:
 Remarks must be published in order to constitute defamation.
 The standard for ‘publishing’ is very low.
 The general rule is that if the D accidentally publishes the remarks to a third party who accidentally overheard,
the D will not be liable unless it was his fault that the third party overheard.
 Since G raised his voice in the argument, he was responsible for the third party overhearing and therefore is
guilty of publication of slanderous remarks.
Defences

Tension btw freedom of speech and protection of reputation
Truth/Justification




If D can prove the statement is true = complete defence
Has to be substantially truth (maybe some leeway)
D must prove truth
o If court doesn’t agree, damages may be increased
o Courts think that not only has P been defamed, but now in the context of a claim insisting statement is true
o Risks for P to pursue defamation action, must make sure D can’t be proven
Doesn’t matter if its malicious
Absolute Privilege





Can be true or false
Absolute protection from liability for defamation (doesn’t matter if its malicious)
Absolute privilege is a complete defence
Attaches to a number of specific occasions
o Judicial proceedings
 Defamation Act s 12
o Parliamentary proceedings
o High Executive officials of state (cabinet members) in the performance of their duties
 Statement by one officer to another
 Relating to state matters
o Spousal communications
Protects communication in situations where society’s interests are best served by allowing people to speak freely
Qualified Privilege





Can be ultimately true or false
Partial or conditional immunity
Cannot be made in Malice. Malice = high handedness, showing no respect or attempt to mitigate or understand.
Dominant motive is ill will or spite
Importance of communicating overrides need to protect reputation
o A reasonable person would agree that the publisher (D) had moral, social, legal duty or interest to convey
information and the recipient had a reason to receive it
 Reciprocity is key element
 It is a question of Law, not fact, whether the relationship of the parties and condition of publication are
sufficient to support the defence of QP
Four main contexts
o Protection of one’s own interests
 D has honest belief in material; duty to protect self; reciprocal relationship with those to whom attack
was published
 Not an excuse to abuse the attacker
56
o
o
o
o
Matter of common interest or mutual concern
 D has honest belief in material; social/moral duty to further common concern; reciprocal relationship
with those who share concern  must be interest of both
 Ie. Shareholders of a company can talk about customers/employees with business owners (common
interest to discuss mutual economic concern)
Moral or legal duty to protect another’s interest
 D has honest belief in false material; reciprocal relationship btw d and the one to whom duty/obligation
owed
 Ex. Job Reference: Information that is requested and you have obligation to tell them this information.
Public interest
 D has honest belief in material; reciprocal relationship to public at large
 Ie. Reporting crime to police, reporting teacher to school board, warning about dangerous product
 Public Interest does not justify a free for all
 Cannot be done in malicious or improper way
Note: New Defence in 20009 adopted from UK of responsible communication
Responsible communication on matters of public interest (Quan)




Distinct from Qualified Privilege: Public Interest Defence
o Broader
Note: Does not just apply to journalists, theoretically applies to bloggers, but requires due diligence of journalists.
Purpose of Adopting this defence
o QP is difficult defence for media to establish, reporters may have checked facts but unable to prove them in
court
o Creates chill for media and FoE
o Law seemed to favour reputation over free speech
o Defence specific for media aka Responsible Journalism
o Legitimate interest about which public or some sector of public has substantial concern
o Value is higher in public knowing than ensuring reputation is not harmed
Test:
o 1) Is the publication on a matter of public interest?
 Must affect the welfare of citizens, or a segment of them
 Not simply to satisfy curiosity
 Cannot be motivated by malice
o 2) Was the publisher diligent in trying to verify the allegation, having regard to:
 The seriousness of the allegation
 Diligence should be directly proportionate to severity
 The public importance of the matter
 Urgency of the matter
 Status and reliability of the source
 Whether the P’s side of the story was sought and accurately reported
 Whether the inclusion of the defamatory statement was justifiable
 Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth
 Any other relevant circumstances
 Tone, multiple meanings…
Fair Comment




Honest comment or opinion based on truth (a true fact)
o On matter of public interest
o Objectively Fair (honest, even if harsh)
o Not malicious (malice defeats the defence), made in good faith
Fair ≠ reasonable
o We are free to be unreasonable in our opinions
o All you need is that someone has to honestly hold it
Example:
o Art critic, food critic,
Must show comment is based on true facts ie. Dr. is a Quack ✖, DR took out my gall bladder without permission, he is a
quack ✔
57

Onus on P to prove Malice
Defamation Act p 482
 Section 11 – proceedings in court for absolute privilege
o Even if you are just reporting on exactly what happened in court proceedings, your are still protected
Quan v Cusson 2009 SCC p 485
Facts:
 C was a police officer in Ontario.
 After 9/11, the OPP volunteered their services to help with rescue efforts, but NY declined the offer. C went
anyways, without permission.
 At first, C was portrayed as a hero and his boss was made to look bad for demanding he returned to work.
 An Ontario newspaper then published articles which alleged that C had misrepresented himself to the authorities
in NY and had interfered with the rescue operation
o C apparently wore an RCMP outfit, even though he was not RCMP
o C had been barred from helping with the operation, but continued to return to the site anyways
 C sues for defamation
 Q argues for a defence of ‘responsible communication on matters of public interest’
Issue: Can Q (from the newspaper) protect himself with this defence?
Decision: Possibly – need a new trial for the jury to decide on the issue
Reasons:
 The defence applies where:
o The publication is on a matter of public interest (decided by the judge), and
o The publisher was diligent in trying to verify the allegation (decided by the jury)
 The public interest requirement is clearly met in this case.
 Was a new issue raised on appeal by bringing up this defence? NO
o They are still entitled to a new trial, with this defence available
 Since the second question is left up to the jury to decide, there must be a new trial
Hill v Church of Scientology of Toronto 1995 SCC p 490
Facts:
 M (part of the Church) held a press conference where he announced that the Church would commence
proceedings against Hill (a crown attorney) for criminal contempt
 M alleged that H had misled the judge of the SCC and had breached orders sealing certain documents belonging
to the Church
 During the proceedings, the allegations were found to be untrue and without foundation
 H therefore sues for defamation
Analysis:
 M’s conduct far exceeded the legitimate purposes of the occasion.
 M should have taken steps to confirm the allegations before launching an attack on H
 M’s comments and the breadth of the press conference were unnecessary and inappropriate in the circumstances
Torts Review Problem:
Issue 1
Does D owe a duty of care?
Did A breach her duty of care: did she
meet or fail to meet her standard of care?
1) What is her standard of Care?
2) Did she meet it?
Lucy’s Obligation as a Driver
Lucy Owes a duty of care to Jenny (Donoghue Principle) Mother owes duty to
child
1) The standard of the reasonable driver: the reasonable person
 How do reasonable drivers behave?
2) A person who is suffering from fainting spells on a reasonable basis is not
reasonable to be driving to the appt.
Causation and Remoteness:
1) But for Lucy’s Negligence woudl Jenny had suffered from injury? No.
58
1) Is there Causation?
2) Is there a remoteness issue?
Is there any Possible defences here?
Contributory Negligence
1) Was the P also Negligent?
a) Did P act reasonably? Ie. Meet the
standard of care?
 Subjective, Objective Question?

2) If yes, did their negligent contribute to
the loss they suffered?
Issue 2
Does D owe a duty of care?
What is Her standard of Care?
Causations
Did her Negligence Cause Harry’s Loss?
Remoteness?
Defences?
Issue 3: Duty to Rescuer
Duty of Care: Does D owe duty to a
rescuer?
Standard of Care to a Rescuer: Did she
negligently create a situation that made
Dave feel like he needed to help?
Causation:
Did Lucy Cause the Injury
Remoteness:
Defences:
Issue 3
How far does liability extend?
Is it foreseeable? Or is it too remote?
Issue 4: Harry’s claim against Dr. Jackson
Dr. has a duty of care to Patient?
Dr. Standard of Care
 Emergency Medical Aid Act?
Issue 5: Does Lucy have to pay for Dr.
Jackson’s negligence?
Remoteness Issue
2) No remoteness issue
a) Couple of questions when dealing with minor plaintiff.
 Do the McEllistrum and Etches Test.
Does a reasonable 14 year old realize that a pulling the handbrake would stop
the car?
 Must look in the context of the circumstances ie. agony/emergency situation
Lucy owes duty of care to users of the road.
If she drove negligently with respect to Jenny, the same approach applies to
Harry.
But for Lucy’s Negligence would Harry have suffered Injury? No.
Yes
No issue. Clear connection btw negligence and injury.
Nothing on the facts to suggest contributory negligence. No defences.
Lucy owes a duty of cares if she created a situation of danger where people need
help, and lucy is negligent in doing so, she potentially owes a duty to people who
would foreseeably come and help.
“Danger invites rescue”.
Dave is a rescuer, his attempt was foreseeable, Lucy owes him a duty.
Yes.
But For test is met.
Lucy could argue it was too remote. It was not reasonably foreseeable that Dave
would faint at sight of blood. Although if it was much carnage.
Not enough to get in a Mustapha Question analysis. (nervous shock or
psychiatric damage)
BUT  thin skull rule – Lucy is liable.
Daves own actions are a problem. We don’t know if he knows he is a fainter.
If lucy is liable to dave, are we going to allow him recover for his broken glasses?
If it was foreseeable for him to fracture his nose, it is also foreseeable for him to
break his glasses. Not too remote.
Yes Drs. Have a duty of care to patients.
Did Dr. Jackson breach duty of care?
 Comparator: reasonable family doctor
Is this an error that the reasonable family physician in these circumstances
could have been made? The error could be not negligent.
Lets say he is negligent.
If he had arrived on scene, and didn’t have his equipment, act not so relevant.
But if act does apply, then he needs to be grossly negligent, and he would be
liable.
Lucy could potentially be liable to extra injuries.
Injured party has to be reasonable in seeking negligence.
It is foreseeable that if you injure someone they will seek medical care, and that
care may be negligent.
In the past – once Dr. made his own negligent tort. Lucy’s liability would stop.
 no remoteness problem.
 difficult to prove medical malpractice claims
59
 Harry shouldn’t have to re-etablish a second claim, hes the victim!
Does Harry also have a claim against Jenny?
 Maybe. But not productive. Jenny doesn’t have deep pockets.
 If Jenny wasn’t negligent with respect to her own injuries, then she acted reasonably. And Harry couldn’t get anything.
Alternative Dispute Resolution



Most legal disputes settle
The Traditional Approach: The Litigation Track
o Negotiation
o Mediation
o JDR
o Trial: Adversarial relationship
Client-Centered Approach (Circular)
o Ask the client what they really want/need.  search for appropriate solutions
o Helps meet lawyers’ ethical and legal obligations (Code of Conduct 2.02(7) requires lawyers to advise and
encourage settlement)
o Goal is resolving the issue for the client. Not linear – fact driven
o Goal is resolution
 Use JDR (Judicial Dispute Resolution)
 Mediation (Mandatory Mediation Programs in Alberta)
 Parties choose a neutral person to facilitate negotiation + identify solutions
 Parties choose solutions
 Confidential
 Arbitration
 Decision is ultimately binding
 Most close to trial
 Private judges chosen by parties
 Collaborative Law
 Negotiation
 Parties can control the process
 Can be collaborative
 Information & Education
 Litigation
o Court Services makes available a number of processes for resolution
 Judicial mediations
 Judicial dispute resolution
 Case conference and case management
o Majority of people come in and don’t want money.
o Obligation as lawyers to choose most expedient alternative involved. Built on Proportionality.
60