Dual Canadian Torts

Professor. Campbell
Fall 2018
 Canadian Torts Consolidated Notes

INTRODUCTION

Definition - TORT "Injury; wrong. The breach of a duty imposed by law, whereby some person acquires
the right of action for damages." Lawson v. Wellesley Hospital (1976), 9 O.R. (2d) 677 at 681 (Ont.C.A.)

"In very general terms, a tort is a civil wrong, other than a breach of contract, which the law will redress
by an award of damages" Id. at 682, quoting Fleming, The Law of Torts, 3d ed.

Most torts are formulated on the basis of the nature of the defendant’s conduct and the nature of the
plaintiff’s loss (consequences of D’s conduct) that has been caused by that conduct. Liability is
determined by measuring the action of the plaintiff against the standards of the law. It is impossible to
compensate for all losses
• The Nature of the Defendant’s Conduct (As a general rule, proof of intentional or negligent
conduct is an essential component of tort liability)
o Intention: Conduct is intentional when the defendant desires its consequences i.e.
professional hit man who assassinates a politician
o Negligence: Conduct is negligent when the defendant creates a reasonably foreseeable
and substantial risk of its consequences i.e. the homeowner who fails to clear the ice from
the steps of his house
o Accident: Conduct is accidental when the defendant neither desires its consequences nor
creates a foreseeable and substantial risk of its consequences i.e. a hunter who discharges
a firearm is a wooded area where it was not foreseeable that people would be.
• The Nature of the Plaintiff’s Loss
o Hinz v. Berry (English CA): A mother witnessed a car accident, which killed her husband
and other children. She brought several claims, one of which was for nervous shock. This
claim was allowed because the shock of the accident caused her to suffer a clinical
depression, which is a recognizable psychiatric illness. The line drawn between
compensable and non-compensable loss was psychiatric illness versus a more transient,
minor emotional distress.
o Star Village Tavern v. Neild (Manitoba QB 1976): The bar owned sued a negligent driver
for hitting a bridge, causing the plaintiff to lose profits. Courts have generally been
hesitant to recognize claims for pure economic loss as a result of the volume and
magnitude of financial loss and concerns with proof of loss. The court did not allow the
claim.

- Conduct should be wrongful but not innocent, a way to classify this is through intention, negligence, and
accident
- Conduct is intentional when the defendant desires the consequences of its action
- Conduct is negligent when the defendant creates a reasonably foreseeable and substantial risk of
its consequences
- Conduct is accidental when the defendant neither desires its consequences nor creates a
foreseeable and substantial risk of its consequences
- Proof of intention or negligent conduct is essential to tort liability. There is no liability without fault
- When liability EXTENDS TO accidental conduct, we call this strict liability, this imposes liability
solely on a causation of damage
- When it comes to compensable damages, the court tries to draw a line between what can and cannot be
compensated
OBJECTIVES OF TORT LAW

Moralist View: The moralist approach explains tort law as a system of corrective justice based on the
ethical principle of personal responsibility for damage caused by a wrongdoing. Tort law is, on this view,
grounded in a simple and elegant moral imperative: personal accountability for the consequences of one’s
wrongful actions.

Instrumentalist View: It identifies the multiplicity of desirable functions of tort law, it evaluates the
degree to which these goals are achieved, and it evaluates the degree to which these goals are achieved,
and it contemplates alternative legal and non-legal vehicles that may attain these goals more effectively
and efficiently.
• Compensation: The most important function of tort law is to provide compensation for losses
caused by conduct that the courts regard as below social standards. Tort law is designed to restore
the plaintiff to the position that she would have been in if the tort had not been committed.
Compensation is tailored to the particular loss that the individual plaintiff has suffered.
o Compensatory power has been enhanced dramatically by liability insurance by protecting
defendants from adverse financial consequences. The loss is spread or distributed broadly
throughout the community to those who purchase liability insurance
• Deterrence: Tort law aspires to influence the conduct of citizens in order to secure a safer society
o Specific Deterrence: Specific deterrence operates against the individual defendant and is
an aspect of the punitive function of tort law. The award of damages encourages the
defendant to change his future behavior May also have other reputational consequences
in the context of professional liability
o General Deterrence: The threat of tort liability encourages citizens to adopt safe
practices and avoid conduct likely to cause damages to others. Those individuals who are
not deterred from bad driving by a concern for their own safety, or by a desire to avoid a
criminal prosecution, the possible loss of their driver’s license, or damage to their own
vehicle are unlikely to be deterred by the prospect of their liability insurer having to pay
for any damage they may cause to others.
o Market Deterrence: The central premise is that tort liability allocates accident costs
flowing from substandard conduct to the defendant producer, and the consequential
increase in the price of the defendant’s goods or services will encourage both the
defendant and consumers to respond in a way that will reduce accidents.
▪ Defendant is encouraged to reduce its liability by making safer products in order
to remain competitive
▪ Consumers may end up spending money elsewhere if the liability cost is too high
• Psychological Dimensions: Tort law provides a civilized and non-violent way to allow the
victims of wrongdoing to secure some appeasement, retribution, and accountability for their
suffering
• Education: The tort system speaks generally to citizens of the importance of compliance with
reasonable standards of conduct in the interest of the safety of others.
• Ombudsperson Role: Tort law is well placed to challenge the wrongful and harmful behavior of
the most powerful persons and institutions and society
 Class Two: Negligence, Basic Principles

NEGLIGENCE

THERE IS THREE CORE ELEMENTS: THE NEGLIGENT ACT, CAUSATION, AND

DAMAGE. The negligence system operates as an insurance system to spread or distribute losses caused
by negligent conduct to a broad segment of the community.
• The negligent act is determined by identifying the appropriate standard of care and applying it to
the facts of the case
o Duty of Care: Liability cannot be established unless the judge recognizes that the
defendant owes the plaintiff a duty of care in respect of the plaintiff’s interests.
• Causation is established by showing a link between the defendant’s negligent act and the
plaintiff’s damage
• Damage is the vital element that triggers the claim and launches the litigation process
• A defendant is not responsible for every consequence of his negligent act
o Remoteness of Damages: A negligent act may have utterly improbable consequences
that are entirely removed in time and place from the defendant’s act. If the damages are
so remote and improbable, the defendant will be sheltered from some or all
responsibility.
• Once a plaintiff has established these elements, the defendant can assert 4 defences: Contributory
negligence, voluntary assumption of risk, illegality, and inevitable accident
• Once liability has been established upon a consideration of the aforementioned elements,
damages must be assessed

After establishing these elements, a defendant can raise four key defenses:
1) Contributory Negligence: Partial defense leading to the proportionate reduction in the quantum of
damages
- Proportionate reduction in damages because of the plaintiff’s own disregard
2) Voluntary Assumption of Risk: Complete defense that arises where the plaintiff consents to the
defendant’s negligence and its consequences
3) Illegality: Operates to deny a claim, such as one for future illegal earnings, that would subvert the
integrity of the legal system
- Bad people trying to get away with bad things and trying to get negligence out of someone. Bad
person breaks into a convenience store and gets hurt, should they be able to make a claim?
4) Inevitable Accident: A complete defense where the defendant asserts that, in spite of indications to
the contrary, the loss was caused, not by his fault, but by an inevitable accident

- Once liability has been established, you must assess damages which are made in a lump sum award.
This framework of negligence is a fault-based system. However, the practical reality of negligence law is
that it is a negligence/insurance system that spreads or distributes losses caused by negligent conduct to a
broad segment of the community

THE STANDARD OF CARE: REASONABLE PERSON

The primary element of negligence liability is the negligent act—a failure to take care for the safety of the
plaintiff.
• The common law, however, typically resorted to the reasonable person when it is in need of a
normative standard of conduct, and negligence law is no exception. The standard of care that
must be met in the tort of negligence is that of the reasonable careful person in the
circumstances of the defendant
 o Vaughn v. Menlove (England 1837): The defendant was warned of the danger of placing
his haystack to close to his neighbor and it caught fire. The court found that the defendant
must adhered to the rule which requires that in all cases a regard to caution such as a
man of ordinary prudence would observe. The defendant was held liable
o Groves v. Morton (ON SCJ 2006): "The defendant must also establish on a balance of
probabilities that the plaintiff's behavior fell below the standard to be expected from a
person of ordinary prudence"
• The standard of care is a reasonable one. No consideration is given to the defendant’s thought
process or his subjective awareness of the danger that his conduct poses to others
o The test of the reasonable person excludes all the psychological and physical traits that
make each person different
• The standard of reasonable care has displayed surprising reliance and longevity:
o An objective standard presents fewer problems in respect of proof of negligence;
o It is good policy to require a uniform standard of safety and security in society;
o The adoption of an objective standard more efficiently promotes the compensatory
functions of negligence law;
o The objective standard of the reasonably careful person in the circumstances has provided
judges and juries with an abstract and malleable concept that can be applied to all judges
activities, in all circumstances, at any time.

APPLICATION OF THE STANDARD OF CARE

Conduct is negligent only if it carries a risk of damage that a reasonable person would contemplate and
guard against.

A) FORESEEABLE RISK
The reasonably careful person avoids creating foreseeable risk of injury to others. The concept of
foreseeability may not be enough to support a finding of negligence because other factors must be
considered.
- The concept of foreseeability in itself isn’t sufficient to find negligence because there are other
factors to be considered, however it’s an essential component to liability

Gloster v Toronto Electric Light Co. – Forseeable

Facts - Kid touches live wire close to public bridge and was injured
Holding Danger was obvious to a reasonable person and the defendant was held to be negligent

Amos v. NB (Electric Power Commission) – Foreseeable

Facts - Def allowed tree to grow between electric lines so you couldn’t see them, plaintiff
climbed the tree and was injured when a branch swayed into wires
Holding Court imposed liability, the risk was foreseeable, and a reasonably careful person would
have trimmed the tree

Shilson v Northern Ontario Light and Power Co. – Unforeseeable

Facts - 12-year-old boy electrocuted walking across a narrow pipe across a ravine by touching a
live wire 4-feet above the pipe
- There were warnings and barricades that did not dissuade
Holding Given these unusual circumstances, Court concluded that the defendant had “no reason to
apprehend that children might find an opportunity of making the company’s high voltage
wire…a source of danger”
Moule v. NB (Electric Power Commission) – Unforeseeable
Facts - 10-year-old plaintiff climbed tree and came in contact with def power lines
- This tree had been trimmed and you could not climb on it directly, you had to climb onto
another tree to get to it
- The defendant had taken some steps to reduce the danger. The maple tree had been
trimmed of branches on the side facing the power lines and it was not possible to climb the
tree directly from the ground.
Holding A reasonable person could not have foreseen such an extraordinary concatenation of
events. The chain of events that the plaintiff went to get hurt is so unusual that it would be
nearly impossible to foresee
- Concatenation: A series of interconnected events

B) THE LIKELIHOOD OF DAMAGE

The reasonable person takes greater care when there is a strong likelihood of damage and takes lesser care
when the chance of damage is minimal.
• Bolton v. Stone (House of Lords 1951): Plaintiff was struck by a cricket ball that had fallen on the
road 6 times prior. The court held that to demand the conduct of citizens be entirely free of all
foreseeable risk would be not only excessively burdensome but, in the light of human nature,
impractical. The court drew a distinction between foreseeable risks that are substantial and
material and foreseeable risks that are highly unlikely or mere possibilities. Reasonable
people avoid creating material and substantial risks of foreseeable harm.

C) THE SERIOUSNESS OF THE THREATENED HARM

The reasonable personal also regulates his conduct with reference to the severity of the threatened harm.

• Paris v. Stepney Borough Council (House of Lords 1951): Employee lost eyesight in his one good
eye because his employer did not provide him with eye protection even though he had previously
lost an eye. The court held that while there may have been no greater risk of injury to the
plaintiff, there was a risk of greater injury to this person and a reasonable employer would have
taken greater care. When a risk of greater injury to a plaintiff is present, the anticipation of a
greater harm should be mitigated if foreseeable.

D) THE COST OF PREVENTATIVE MEASURES

- The magnitude of risk (likelihood of the damage multiplied by the seriousness of the threatened harm)
must be balanced by a consideration of the cost of the measures needed to reduce or neutralize the risk
- It’s not reasonable to demand extravagantly expensive and impractical measures to remove a
minimal risk → but, if it’s reasonable, affordable and practical, then they should be taken
• Latimer v. A.E.C. Ltd. (House of Lords 1953): The defendant chose not to close his factory after
an oil spill and one of his employees fell. Court held that the defendant was not liable because the
cost of closing the factory seriously outweighed the damage to the plaintiff.

Ware’s Taxi Ltd. V. Gilliham – Negligent

Facts - Def drives kids to school, the plaintiff was playing with the door and the defendant told
the plaintiff to move away from the door and checked that the door was locked. The door
opened anyways, and the child was injured.
Holding - Court pointed out that child protective locks were just $10 per door and taxi drivers
usually position older children by the doors to guard the children
 - Ruled that the taxi driver was negligent in the face of these available measures
- Factors examined include: expense, feasibility, and interference with operations
Ratio When preventative measures are inexpensive, feasible, and would not interfere unduly
with the action in question, they must be taken

Latimer v. A.E.C. Ltd.

Facts - There was a flood in a factory, water mixed with oil making ground slippery
- Extensive cleaning took place but the only way to make it 100% safe was to close the
factory down temporarily. The def didn’t want to do so and the plaintiff fell and injured his
ankle
Holding - Not negligent because the small risk to the employees was insufficient to justify the
expense and inconvenience of completely interrupting the def’s business, even temporarily

e) The Utility of the Defendant’s Conduct

- Usually only relevant in cases involving governmental services where the inevitable price of direct and
necessary benefits to the public is an increased risk of injury to innocent persons (Ex: police speeding
through child zone and hits a child while trying to catch criminal)
- Many foreseeable risks must be tolerated because they are integral to the kind of society that we have
chosen to create and live in → assuming there is a redeeming value of this toleration

EMERGENCY SITUATIONS
Courts are sympathetic to the defendant’s plight and some leniency is shown to the defendants who have
done their best in the agony of the moment. This leniency is particularly pronounced where the defendant
is acting in the capacity of a rescuer.
- In order for the Emergency doctrine to apply, the proponent must show there is sufficient “evidence
to support a finding that the proponent had been suddenly placed in a position of peril through no
negligence of his or her own, and in meeting the emergency, acted as a reasonably prudent person
would in the same or similar situation.
• Horsley v. McLaren (SCC 1971): Failed boat rescue case. The court held that the defendant may,
in the heat of the moment, have made a mistake but he had acted in good faith and had done his
best to rescue the deceased.
o Dissent: This is a case of the defendant not putting into action a standard of procedures
that are required in an emergency and which the defendant knew and had practiced.
• Ferguson Estate v. MacLeod (PEI 2000): "The sudden emergency doctrine, or agony of
collision rule, illustrates the basic proposition that the standard of care is that degree of care
which would have been taken by the reasonable person in like circumstances. Since negligence
law does not guarantee the safety of others, but only assures them that they will be compensated
for injuries caused by unreasonable conduct, errors in judgment which do not qualify as being
negligent are permitted. "1

1
Contrast with American approach in Lockhart v. List (PA 1995): Individual will not be held to the “usual
degree of care” or be required to exercise his or her “best judgment” when confronted with a sudden and
unexpected position of peril. Rather, under such circumstances, a person is required to exhibit only an
honest exercise of judgment
Fleishman v. City of Reading, (PA 1957): By the time Plaintiff became aware of the emergency, “fate’s
course had been shaped beyond man’s alteration.”
Wilson v. Consolidated Dressed Beef Co., (PA 1929): Whether in that brief time [Plaintiff] could have
changed her course to the right and escaped the collision [was] problematical and was for the jury.”
 • Spratt v. Edmonton (City): Conduct which ordinarily would constitute negligence may be
excused if it is carried out under the spur of a sudden emergency. But a person whose
negligence brought about or contributed to the creation of the emergency cannot escape
liability by invoking this rule.

CUSTOM AND APPROVED PRACTICE

The application of the standard of care is also influenced by proof that the defendant’s behavior was
consistent with the established practices and customs of other citizens carrying out similar activities and
tasks. There is good reason to consider such evidence. It establishes a concrete, defined course of conduct
that reflects the accumulated wisdom of those involved in the activity.
• Early in the 20th century, the court treated compliance with approved practice as conclusive of due
care. This view has been discredited partly on the grounds that it is the responsibility of the judge
or jury to decide whether there has been negligence.
• The current approach is to view proof of compliance with approved practice as providing some
evidence of due care. The strength of that evidence depends on:
o The longevity of the practice
o Its universality
o The status and reputation of the profession or occupation and its members
o The degree of technical difficulty of the task at issue
• Neuzen v. Korn (SCC 1995): The plaintiff was inadvertently infected with HIV; however, expert
testimony indicated that all of the appropriate steps were followed. The court held that where a
procedure involves difficult or uncertain questions of medical treatment or complex, scientific or
highly technical matters that are beyond the ordinary experience and understanding of a judge or
jury, it will not be open to find a standard medical practice negligent. The court also recognized
that where a standard practice is fraught with obvious risks that any lay person could understand,
a finding of negligence may be made.
o Anderson v. Chasney (SCC 1949): Child suffocated when a surgical sponge was left in
his throat. The court found liability
o Girard v. General Hospital of Port Arthur (ON Div Court 1997): Sometimes it is hard to
find liability and what the approved practice actually is. The defendant’s actions were
consistent with the approved practice and that there was no reason to suspect that the
plaintiff would fall. It was not open to the court to reject that professional opinion even
though the presence of a nurse might be considered a reasonable precaution by a lay
observer.

WALFORD V. JACUZZI CANADA LTD. (ON CA 2007)

Plaintiff went down a used slide head first, when she reached the bottom, she went into the water head
first, struck her chin on the bottom of the pool and was rendered quadriplegic. Court found that the pool
shop that had told the mother that the slide would be okay in their pool was liable. The accepted standard
for pool slides involved more than simply a consideration of minimum pool depths. The standard [CPSS]
included many other safety requirements, the most important of which is the mandatory provision of
information and instructions concerning the extreme and non-obvious danger of paralysis if a slide is used
improperly.”

This conclusion was based on the further finding, that the use of a slide with a 4-foot pool gives rise to a
“hidden danger. The excerpts also show that the danger of pool slides is not something that is generally
known based on "common sense.” In other words, the danger from using a pool slide in relatively shallow
water is not an obvious danger.

CONSUMER PRODUCT SAFETY ACT

Protect the public by addressing or preventing dangers to human health or safety posed by consumer
products in Canada. Rules on manufacturing, importing, advertising and testing consumer products in
Canada

POST-ACCIDENT PRECAUTIONS
The use of post-accident precautions as evidence of liability advances the compensatory function of
negligence law by facilitating a finding of liability but it may have an adverse impact on accident
prevention goals by discouraging potential defendants from taking additional precautionary measures for
fear that they will conclusively foreclose the issue of fault in favor of the plaintiff.
• Evidence of post-accident precautions may not, in itself, be construed as an admission of liability
but it may be admitted establishing a fact that supports a finding of negligence where the
evidence would not be unduly prejudicial to the defendant
o Anderson v. Maple Ridge (District Of) (BCCA 1993): BCCA approved the use of
evidence that a stop sign was moved by the defendant municipality after a car accident
and that there was a subsequent reduction in accidents to show that the sign was difficult
to see in its original location

JUDICIAL POLICY
In respect of some activities, the courts have exercised their discretion to impose high standards of care
approaching strict liability.
• A stringent standard has been imposed on the drivers of automobiles, common carriers of
passengers, manufacture of consumer products, and those who carry on dangerous activities
• Lenient standard of care has been applied in the context of sporting events where players injure
other players
• Courts are also slow to impose liability on professional persons, particularly physicians, even
though liability insurance is virtually guaranteed

ECONOMIC ANALYSIS
The courts have not openly embraced the concept of economic analysis of law, but it is likely that
economic theories developed and popularized in the United States influence some judicial thinking
(Posner).
• If the cost of precautionary measures is less than the likelihood of the injury multiplied by the
magnitude of the loss, it is negligent to fail to take precautionary measures
• However, if the cost of precautionary measures is more than the likelihood of the injury
multiplied by the magnitude of the loss, it is not justifiable, economically, to take those measures,
and the failure to take them is not negligent

THE EQUITY OF THE CASE

It should not be overlooked that negligence law presents special pressures and opportunities for a judge to
accommodate the equity of the case. The pressures are created by the serious plight of many plaintiffs,
particularly those who have suffered catastrophic personal injuries, and the acute awareness of the trier of
fact that almost all defendants are insured and will not be personally burdened by a finding of liability
against them.
- Consciously or unconsciously, facts may be emphasized or marginalized, and principles may be
interpreted broadly or narrowly to accommodate the demands of justice in a particular case

HINDSIGHT BIAS
The defendant must be judged by the foresight and care of a reasonable person when the act or omission
at issue took place, not by the hindsight of the trier of fact.
• Psychological studies have shown that people overstate the predictability of past events and
consistently overestimate what could have been foreseen before an event occurred

SPECIAL STANDARDS OF CARE

There are certain situations where the standard of the reasonably careful persons is not applied to the
defendant. This may have the effect of either lowering or elevating the standard of care.
- It may be lowered with respect to those with mental disabilities or children, and raised when the
defendant is a professional or represents themselves as having an ability to exercise special care
and skill

MENTAL DISABILITY
Canadian law has traditionally resolved conflicts in favour of mentally impaired defendants.
Considerations of fairness and justice suggest that mentally incapacitated defendants should be free of
liability. It does not seem right to punish or deter those who are incapable of acting with reasonable care.
The issue of a defendant’s mental disability operates on two levels in negligence cases:
• It may render the defendant’s actions involuntary; or
• It may prevent a volitional defendant from complying with the normative standard of care
o Stokes v. Carlson (MO 1951): The defendant was sleeping and pushed the driver’s seat
forward causing the plaintiff to lose control. The defendant was not held liable for the
plaintiff’s injuries because his actions lacked volition.
o Slattery v. Haley (ON CA): The defendant driver of the car was suddenly taken ill and
lost consciousness. The defendant was not held responsible for the death because of his
lack of consciousness
• Buckley v. Smith Transport Ltd. (ON CA 1946): An employee suffering from end stage syphilis
and struck a car. The court held that since the defendant’s mental illness was such as to prevent
him both from understanding the duty of care that rested upon him and from discharging that
obligation, he could not, in fairness be found to be negligent
• Fiala v. Cechmanek (AB CA 1999): The defendant attacked someone in a manic state and that
person struck another vehicle with his car. The court found that the defendant was robbed of his
capacity to understand or appreciate his duty of care by the sudden onset of a serious mental
illness and he could not be found liable in negligence

- When the defendant is robbed of their capacity to understand or appreciate their duty of care by the
sudden onset of a serious mental illness, they cannot be found liable in negligence

CHILDREN
The courts have been sensitive to the diminished capacity of children to take care and have developed a
special standard of care applicable to them. Canadian courts have adopted a mixed objective/subjective
test of liability in McEllistrum v. Etches: SC held that the standard of care applicable to a child was that
of a child of similar age, intelligence and experience as the defendant
 • An objective standard of care would require a child to display the same degree of care as a
reasonable child of like age
• A subjective standard of care could be imposed which would create liability only where the
defendant child was aware of the danger that she created
• CURRENT CANADIAN APPROACH Objective/Subjective Test
o McEllistrum v. Etches (SCC 1956): The Supreme court held that the standard of care
applicable to a child was that of a child of similar age, intelligence, and experience as the
defendant
o Joyal v. Barsby (MB CA 1965): Plaintiff was injured when she was struck by a truck on a
country road. Court considered that she was not of above average intelligence, she was
from the city, and she was distracted
• There is no fixed age below which a finding of negligence cannot be made but children of tender
years (<5) have little capacity to appreciate danger and there is virtually no chance that children
of this age will be held liable
• If an older child is undertaking an activity normally carried on only by adults, however, it is
likely that the adult standard will be applied
• Generally, parents are not vicariously liable for the torts of their children, but they are under a
personal duty to take reasonable care to supervise and control their minor children and they may
be liable for loss caused by a failure to discharge that obligation
o The Manitoba Parental Responsibility Act imposes civil liability on parents for the
intentional destruction, damage, or taking of property by their children up to a maximum
of $10,000. Proof by parents that they exercised reasonable supervision over their child
and that reasonable efforts were made in good faith to discourage the child from the kind
of activity that gave rise to the property loss amounts to a complete defence. The Act,
therefore imposes a rebuttable presumption of parental fault in respect of deliberate
property damage caused by their child

PHYSICAL DISABILITY
The law accommodates those persons who suffer from a serious physical disability with a standard of care
that is compatible with their condition. This adjustment of the standard of care appears to be applicable
only to major physical disabilities.

SUPERIOR SKILL AND KNOWLEDGE

A higher standard of care is applied to those persons who represent themselves as having special skill and
knowledge that allow them to perform tasks that are normally beyond the capacity of the ordinary person.
• An elevated standard or care applies not only to members of the profession but also to businesses,
commercial, and trades people such as auto mechanics, builders, and electricians. The standard of
care is that of the reasonably prudent and competent member of the particular profession or
vocation.
o In medical malpractice, there is little support for the locality rule which would permit
variations in the standard of care according to the location of a physician’s practice
o The public may reasonably expect such people to exercise a degree of skill and
knowledge commensurate with that representation
o In these cases, the standard of care is that of the reasonably prudent and competent
member of the particular profession or vocation to which the defendant belongs
 Class Three: Duty of Care, Damages, Remoteness

THE DUTY OF CARE: DUTY TO THIS PLAINTIFF

The duty of care is a question of law which requires the judge to determine if the defendant is under a
legal obligation to exercise reasonable care in favour of the plaintiff. The basic idea is that the court must
be convinced that the imposition of a duty of care on the defendant is a good idea.
• Prior to Donoghue: courts approached duty of care by examining the relationship between the
defendant and the plaintiff in the light of prior authority and the surrounding circumstances, and
by declaring whether or not a duty of care was owed by the defendant.
• Donoghue v. Stevenson (House of Lords 1932): Plaintiff found a decomposing snail in her
ginger beer. She sued the defendant in negligence. The House of Lords held that a Manufacturer
of products does owe a duty to the ultimate consumer to take reasonable care to prevent defects in
its products which are likely to cause damage to person or property.
o Neighbour analysis: Persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I am directing
my mind to the acts or omissions which are called into question.
▪ Established a notion of a close and direct relationship which is captured by the
word proximity and the idea of contemplation or foreseeability of damage to the
plaintiff
• Anns v. Merton London Borough Council (House of Lords 1978); Neilson v. Kamloops (City
of) (SCC 1984): Establishes a two-stage duty of care analysis:
o (1) Whether, as between the alleged wrongdoer and the person who has suffered damage
there is a sufficient relationship of proximity.
o (2) Secondly, if the first question is answered affirmatively, it is necessary to consider
whether there any considerations which ought to negative or limit (a) the scope of the
duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach
of it may give rise?
▪ Created a presumption of a duty of care in all relationships giving rise to a
reasonable foreseeability of damage to the plaintiff
▪ It placed on the defendant the unenviable, and sometimes considerable burden of
persuading the court that the plaintiff did not deserve to be protected from his
negligent conduct
- The Anns test created a presumption of a duty of care in all relationships giving rise to a reasonable
foreseeability of damage to the plaintiff. Second, it placed on the defendant the burden of persuading the
court that the plaintiff did not deserve to be protected from his negligent conduct

COOPER V. HOBART (SCC 2003) [CURRENT CANADIAN LAW]

Some investors lost a lot of money due to a negligent stockbroker and they brought a claim against the
professional regulator. According to the appellant, if the Registrar had acted more promptly, the losses
suffered by the investors would have been avoided or diminished. The court held that the plaintiff must
show proximity—that the defendant was in a close, direct relationship to him or her such that it is just to
impose a duty of care in the circumstances.
1. Does the case fall within any recognized category of relationship where a duty of care has been
previously recognized or closely analogous to a recognized category (i.e. Municipality, Gov’t,
private parties in a close relationship)?
- If so, a prima facie duty of care established
- If it falls outside this category, you apply a modified Anns test
2. If the case falls outside, then a modified Anns test is to be applied (NOVEL CASES)
a. Foreseeability of damage to the plaintiff
 i. The essence of duty of care is the foreseeability of damage to this particular
plaintiff. A duty of care is not owed to the world, it is owed only to those
persons whom the defendant might reasonably foresee as being adversely
affected by his failure to take care
b. There must be a proximate relationship between the parties
i. Proximity requires a consideration of: 1) Factual closeness, and 2) Policy
factors
a. Factual proximity focuses on the nature of the relationship between the
defendant and the plaintiff
ii. Policy refers to the relationship under consideration rather than broader societal
interests. They assist in determining if it is fair and just that the defendant owed
a duty of care to the plaintiff
a. Duty is a relational concept and factors which speak to the closeness of
the relationship include physical closeness, social closeness,
circumstantial closeness, causal closeness, and closeness created by
representation, an assumption of responsibility, resilience, and
reasonable expectations
c. Consideration of residual policy factors
i. Residual policy factors are not concerned with the relationship between the
parties. They are concerned with the impact of other legal obligations, the legal
system, and on society generally
ii. The defendant carries the burden of persuading the court that the negative
policy considerations are not merely speculative
Palsgraf v. Long Island R. Co
Facts - Passenger had this box with fireworks in it and scrambled to get on defendant’s train
- He got into the train with some help from the guards, but the box fell on the track, the
fireworks exploded and injured the plaintiff which was hit as a result
Issue Did the defendant owe a duty of care to the plaintiff?
Reasoning - Court held that the defendant owed no duty of care to her. The guards may have been
negligent, and they may reasonably have perceived some risk to the passenger and his
parcel, but the plaintiff was beyond the proximity of foreseeable danger

Mustapha v. Culligan
Facts - Used Culligan bottled water for 15 years and the last time he witnessed the delivery he
saw a dead fly, and parts of another dead fly in one of the unopened bottles. This image
severely scarred him, causing significant psychological harm. He is suing for the
psychiatric harm resulting from the negligence of Culligan claiming he could no longer
drink, shower, or have sex as a result.
Issue Did the defendant owe a duty of care to the plaintiff? Whether through the language of
Donoghue, the relationship was so close so as to owe a duty of care to not injure the other
Reasoning It is long established that the manufacturer owes a duty of care to the final consumer of
their product. Court said this case was not a novel category and therefore a prima facie
duty was established
- Defense was trying to argue the reasonable person standard and looking objectively,
would that person break down by seeing a fly? You shouldn’t hold Culligan liable for that
- Paragraph [12]-[18] remoteness: Once you establish the foreseeability that a mental
injury would occur in a person of reasonable fortitude. Would a reasonable person sustain
some type of mental injury as a result? It doesn’t matter if it’ll be less severe, would that
mental injury occur?
Three Categories
- Further insight into the role of duty of care can be gained by consideration of 3 existing categories of
duty of care: 1) duties of affirmative action, 2) duty of care owed to rescuers, and 3) duty to avoid causing
psychiatric harm

a) Duties of Affirmative Action

- The primary role of negligence law is to oblige people to act in a matter that is not dangerous to others
- Negligence law dictates that you must not expose people to the risk of injury, not that you must help
them

REMOTENESS OF DAMAGE
There are situations where the loss is so different from what one might have expected; so disproportionate
to the magnitude of fault, or so fluky or bizarre that it is unfair to hold the defendant legally responsible
for it. The role of remoteness of damages is to contain liability within reasonable boundaries.
• A loss might be so remote from the negligent act to warrant liability
• There must be some proximate connection between the negligent act and the damage
• Early in the 20th Century, courts adopted the directness rule: The defendant was liable for all the
direct consequences of her negligence. Reasonable foreseeability was relevant to culpability but
not to the extent of liability
• Overseas Tankship (U.K.) Ltd v. Morts Dock and Engineering Co. Ltd. (Aust. 1961): The court
held that the defendant was only liable for the reasonably foreseeable consequences of its
negligence. The foreseeability test was favoured on grounds of fairness and justice to the
defendant, its simplicity of application, and the logic of synthesizing breach, duty and remoteness
under the single concept of foreseeability

1) The Reasonable Foreseeability Rule

Overseas tankship Ltd. V. Morts Dock and Engineering Co.
Facts - Defendant that was the charterer of the ship “the Wagon Mound” negligently discharged
oil into the Sydney harbor
- This oil eventually spread to plaintiff’s wharf where welding equipment was being used
by plaintiff’s employees – Molten metal from this equipment hit the oil which made it
catch fire and damaged plaintiff’s wharf
Issue - Should the defendant have reasonably foreseen such a consequence of their negligence?
Reasoning - Court held that the defendant was liable only for the reasonably foreseeable
consequences of its negligence (ratio)

2) The Interpretation of Reasonable Foreseeability

- There is a great deal of discretion to the trial judge and permit an extensive responsibility for the
consequences of a negligent act

a) The Mechanics of the Accident

Hughes v. Lord Advocate

Facts - Employees of defendant Post Office negligent left a manhole open and unattended while
they took a tea break
- The plaintiff, A young boy, went down the manhole exploring with a lamp, the lamp fell,
exploded and suffered serious burns
Issue Does the foreseeability of the actual event that caused the injury matter, or just the
foreseeability of injury?
Reasoning What is truly of importance is whether the lighting of a fire outside of the manhole was a
reasonably foreseeable result of leaving the manhole unwatched, and they determine that it
 was as the lamps were left there. He focuses on the lamp, and states that the types of
injuries that are reasonably foreseeable from lamps are burns, which is exactly what we
have here. Therefore, the injury is not different in kind from what should have been
expected. As long as you can foresee in a general way the type of injury that occurs then
you have proximate cause.
Ratio As long as the general type of injury can be foreseen, there will be proximate cause

Class 4 - Governmental Liability; Human

JANE DOE V. TORONTO

Trial Appeal
• Para. 55 Decision not to warn the • Para. 13 Do the pleadings support a cause
plaintiff/public of action against the police?
o No police policy not to issue • Para. 14 Police Duties
warnings • Para. 18 Anns = Foreseeability + Special
o Police were simply trying to Relationship
avoid panic • Para. 31 Policy to not inform
o Warning could/should have been • Para. 35 Even if responsible decision,
given police had enhanced duty to protect this
• Para. 60 Police failed duty to protect plaintiff
• Para. 68-69 Duty of Care Analysis

- Foreseeability alone isn’t enough for a duty of care, a special relationship of proximity must be a factor
(Anns)
- In gov’t liability, they will go through the legislation to see what the duty owed to a person may be
- Police has a duty to warn of foreseeable harm depending on the circumstances
- [32] Kamloops says that policy decisions made by public officials will not attract liability in tort so long
as they are reasonably and responsibly made
- It used to be that the governments could do no wrong and were not liable in tort for their employees in
tort. Recently, there was a special procedure set up where you can sue the government.
- Today there is government legislation that bases crown liability in statute
- In cooper, we saw a prima facie duty of care could be negated by policy factors that presented serious
obstacles for claims against the government
-Today, federal and provincial legislation have removed the procedural obstacles against bringing
tort actions against the government
- Legislation recognized that governments are liable for the torts committed by its officers,
employees, and agents

Special care must be taken when suing governments:

1. Enabling legislation must be addressed
2. Legislation’s conditions must be complied with
3. Other related legislation may impose special procedural rules relating to limitation periods or
the giving of notice before commencing an action.

- Courts have been concerned about the need to control the extent of governmental liability in negligence
for losses caused by the exercise of governmental powers
- Courts seek to achieve a balance between governmental action and accountability. They permitted
categories of liability including: road maintenance and building, and permitted a cautious extension of
negligence doctrine into the field of governmental activities
- The court in Hobart adopted the Anns/Hobart formula and held that: most of the government liability
cases are resolved not on the policy operational dichotomy but on the relation of proximity
- In the Hobart situation, the course said that a private duty of care must be based on a statute and
therefore:
1) Careful consideration must be given first to whether a duty of care is found in the framework
and language of the legislation
2) If a duty is supported by the legislation, it may be determined whether that duty is a private
duty of care sufficiently found a negligence action or whether it is a duty owed only to the public
at large
3) A private duty of care is unlikely to be recognized if it is inconsistent with other duties, either
public or private, falling on the defendant
4) Consideration must be given to any remedied, administrative, quasi-criminal, or civil provided
for in the legislation
5) Consideration must be given to the closeness and directness of the relationship between the
government and the claimant
- Once a prima facie duty of care is established, residual policy factors must be addressed. It is at this
stage of the analysis that the policy/operational dichotomy continues to play a role. This prima facie duty
may be negated if a policy decision is at issue
- Cooper is problematic because identification of a duty in legislation which is predominately permissive
in nature is a challenge unto itself and the requisite degree of closeness between the government and a
citizen is difficult to establish unless there is some direct communication or individual interaction
between a citizen and the governmental authority

Holtslag v. Alberta
Facts - Plaintiffs used untreated pine shakes as a roofing material on their homes which were
unsuitable to the task and deteriorated prematurely
- Action was brought against the provincial Director of Building Standards for breaching
their duty of care by issuing a product list that included pine shakes for roofing
Issue - Did the Director of Building Standard owe a duty of care to the plaintiffs by including
pine shakes in their product list?
Reasoning - Alberta COA upheld trial that there was no duty owed
- The court said that the controlling legislation owed no more than a general duty to the
public and, there was no proximity of relationship between the Director and home owners
- Plaintiffs were trying to impose liability through public policy
Ratio - A general duty to the public does not form a relationship of proximity between an
individual plaintiff and government organization

Eliopouslos
Facts - Estate of diseased victim of the West Nile Virus alleged that the government had a duty
of care to prevent the spread of the disease to Ontario
Issue - Was a duty of care owed on behalf of the gov’t?
Reasoning - Same as Holtslag, the court held that the pertinent legislation contained no more than a
general public duty to safeguard the health of residents and there was no proximity of
relationship between the government and the diseased

- Still, there is a recognition that the government is liable in some cases such as inspection of buildings
and road maintenance. Furthermore, since Cooper the SC has identified additional categories of
governmental liability such as:
- Duties of care on the police to both a targeted suspect of criminal wrongdoing and to the family
of the deceased victim of a police shooting in respect of an investigation of the incident
 - Duty on provincial officials to implement a judicial order favourable to the plaintiffs
- Duty on mine inspectors to exercise care for the safety of miners
- In some cases, claimants argue that sufficient proximity can be satisfied, not with reference to the
controlling statute, but from individual, finite, and specific interaction between the government and the
claimant

R. v. Imperial Tobacco
Reasoning - Court found a proximate relationship between the government of Canada and some
tobacco companies arising from Canada’s regulatory power over the industry, its
commercial interaction with the companies, and the specific advice it gave them relating
to the development, manufacture, and marketing of low tar cigarettes
Issue - Does the government owe a duty when it is not by controlling statute but by a close
relation between the claimant and government?
Ratio CJC Mclaughlin stated: Proximity might arise from a series of interactions between
government and the claimant and the government may have, through its conduct entered
into a special relationship to establish the necessary proximity for a duty of care
- The duty of care analysis will now involve a consideration of both the controlling
statute and the relationship between the parties

D. Human Reproduction
- We see many issues in tort law coming up in this area
- There has been an expansive new legislative framework established over the last 10 years

1) Prenatal Injuries
- A child who is born alive may sue in respect of prenatal injuries caused by the defendant’s negligence
- For example, liability may be imposed, on the manufacturers of drugs who fail to do sufficient
testing of new products in respect of dangers to the fetus or fail to warn doctors not to give the
drug to pregnant women
- However, physicians do not owe a duty of care to future children not yet conceived when treating
women of child-bearing age

Duval v. Seguin
Facts - Plaintiff sued in respect of prenatal injuries suffered when her mother was involved in a
car accident caused by negligence of the defendant
Issue - Did the defendant owe a duty of care to the fetus?
Reasoning/ - A defendant owed a duty of care to the fetus which was ACTIONABLE by the child
Ratio as soon as she was born alive
- The child must be born alive to have an actionable claim
- If the child dies because of the injury, there can be no recovery, once they are born, the court with
realize that the child was existing prior to being born
- The woman can still sue for personal damages

Paxton v. Ramji
Facts - The defendant physician failed to follow stringent advisory protocols emphasizing the
importance of the patient not getting pregnant while on Accutane because of the risk of
fetal harm
- Woman became pregnant while on the drug and the child suffered serious disabilities
Issue - Did the physician owe a duty of care to this woman who was not yet pregnant while
taking the medication?
 Reasoning/ - Court held that the duty of care to the child should not be recognized on public
Ratio policy grounds including the potential for a conflict between the duty to the mother
and future children
- This was a novel action (modified objective test), court uses the Anns test and
determines if the defendant owes a duty of care and looks at reasonable foreseeability
of harm, proximity, and policy factors
- Risks to fetus are known and therefore foreseeable, but is the conception
foreseeable?
- As long as there is a potential for a future child to be born that may be affected by a
drug being proscribed to a woman at child bearing capacity, then at the first stage of
the Anns test, the harm to the future child is foreseeable
- If a doctor owes a duty of care to the unborn fetus, then the physician is placed in a
tough situation between the care of the unborn fetus and the care of his patient, the
mother. This would be a conflict of duty that would deprive some women of their
autonomy and freedom of informed choice with respect to their own bodies

- However, a duty of care is not owed by a mother to her unborn child

Dobson (Litigation guardian of) v. Dobson

Facts - Plaintiff child sued his mother for prenatal injuries caused allegedly by her negligent
driving
Issue - Did mother owe a duty of care to her unborn child?
- If the negligent actor is the mother, does the child have the same right as they would
have against any other negligent actor?
Reasoning/ - SC held that a mother owed no duty of care either to her fetus or to her
Ratio subsequently unborn child justified on policy grounds
- The court believed that by setting these constraints, then judicial scrutiny and assessment
of all maternal conduct such as a mother’s lifestyle choices could lead to unacceptable
restrictions on the bodily integrity, liberty, privacy and autonomy of pregnant women
- Any imposition on liability should be considered by legislation and not the court
- Minority believed that driving safe is a duty owed not only to an unborn child but to
third parties as well which would not place any additional limitations on the mother’s
freedom

2) Wrongful Birth
- Refers to claims brought by parents of a congenitally disabled child against a health-care professional
claiming their negligent advice or treatment prevented them from avoiding conception or termination of
the pregnancy

H. (R.) v. Hunter (Example of wrongful birth suit)

Facts - Defendant physician failed to inform the plaintiff that there was a genetic risk that her
male children might develop Duchenne Muscular dystrophy → both sons developed the
disease

- Others include post-conception negligence such as the failure to warn mothers of the risk of fetal
abnormality from post-conception illnesses, failure to test for fetal abnormalities, or the failure to interpret
test results accurately
- But for the defendant’s negligence, a reasonable person in the pregnant woman’s position
- You would look for damages regarding the cost of raising the child
Arndt
Facts - Defendant physician failed to tell the plaintiff of the risk that chickenpox contracted
after conception posed to her fetus
Reasoning/ - Plaintiff must establish that, if the defendant had not been negligent, a reasonable person
Ratio in her particular circumstance (modified objective test) would have prevented the
pregnancy or terminated it as the case may be

- Damages may be increased costs and special expenses of caring for a handicapped child, but the award
may also include loss of income suffered by the parental caregiver and general damages to both parents
for emotional suffering

3) Wrongful Life
- The plaintiff child’s contention is that, had the defendant health care professional given his mother
timely warning of the risk of congenital abnormality, she would have chosen either not to have had a
child, or if the negligence was after conception, to have terminated her pregnancy
- In either case, the child would not have been born and he would have been spared a life
burdened by physical or mental incapacity, pain and suffering
- Damages sought are generally future care costs and non-pecuniary damages for pain and suffering and
for an impaired childhood flowing from the chronic sorrow and psychological grief suffered by some
parents upon the birth of a handicapped child
- These actions are generally rejected because damages in negligence is intended to return the plaintiff to
a position they would have been in had the negligence not taken place. However, this gives rise to a
profound and unanswerable philosophical and theological conundrum → if the defendant exercised care
then the plaintiff would not be alive
- Finding liability in these cases may also devalue the plaintiff’s life and administer the value to their
death over their life
- However, it can also serve as a deterrence for health care professionals to ensure they always take
appropriate caution and care

4) Wrongful Pregnancy
- Action arises where the defendant’s negligence is a cause of the plaintiff’s pregnancy. It arises most
commonly from negligently performed sterilization, but it may also be brought in respect of an
unsuccessful abortion and defective contraceptive products
- Mother has 3 choices: abortion, have the child & raise it, or have the child & put it up for adoption →
each of these choices carries losses that are normally recoverable
- The main question is whether the mother can recover child-raising costs and expenses should she choose
to keep it
- Five approaches: 1) child birth is a blessing and source of joy and shouldn’t be characterized as a harm
or loss necessitating compensation;
2) applies conventional tort principles and awards full child-rearing costs
3) Avoids a personalized assessment of child-rearing costs based on the socio-economic circumstances
and lifestyle of the family by making a “one-size” fits all conventional sum
4) allows child-rearing costs if the reason for sterilization was to avoid financial hardship
5) Characterizes claim not for child-rearing expenses, but by the parents for non-pecuniary losses

Tortious Causes of Action: Human Reproduction

Wrongful Birth Wrongful birth refers to a claim brought BY • Increased costs and
THE PARENTS of a congenitally disabled medical expenses of caring
child against a health-care professional on the for a handicapped child
grounds that her negligent advice or treatment
 prevented them from avoiding conception or • Loss of income suffered by
of terminating the pregnancy. parental caregiver
• General damages for
H(R) v. Hunter: Negligent genetic testing emotional suffering
Arndt: The plaintiff must establish that, if the
defendant had not been negligent, a
reasonable person in her particular
circumstances would have prevented the
pregnancy or terminated.
Wrongful Life Brought as a companion action to wrongful Claimant in USA have sought these
(NOT A birth by the child. The plaintiff child’s damages:
VALID contention is that, had the defendant given the • Future care costs
CAUSE OF mother timely warning of the risk of a • Non-pecuniary damages
ACTION IN congenital abnormality, she would have for pain and suffering
CANADA) either chosen to not have had the child at all
or terminated the pregnancy.

Harriton v. Stephens (AUST 2006): Court

reasoned that the claim would devalue the
santicty of human life
Wrongful The action arises where the defendant’s 1. Rejects all claims for
Pregnancy negligence is the cause of the plaintiff’s child-rearing costs (baby =
pregnancy. joy)
2. Applies conventional tort
principles and allows for
full recovery
3. “One size fits all”
conventional sum
4. Quantum of damages
depends on reasons for
choosing sterilization

CAUSATION

The plaintiff must prove that the defendant’s negligence caused his loss. This is known as cause-in-fact.
Cause-in-fact focuses on the factual issue of the sufficiency of the connection between the defendant’s
wrongful act and the plaintiff’s loss.
• Res Ipsa Loquitur: Elements of duty of care and breach can be sometimes inferred from the very
nature of an accident or other outcome, even without direct evidence of how any defendant
behaved.
o Fontaine v. British Columbia (SCC 1998): The use of res ipsa loquitur has been
restricted to cases where the facts permitted an inference of negligence and there was no
other reasonable explanation for the accident. The law would be better served if the
maxim were no longer used as a separate component in negligence actions.
Circumstantial evidence is more sensibly dealt with by the trier of fact

Res Ipsa in Michigan:

(1) The event must be of a kind which ordinarily does not occur in the absence of someone's negligence;
(2) It must be caused by an agency or instrumentality within the exclusive control of the defendant;
(3) It must not have been due to any voluntary action or contribution on the part of the plaintiff; and
(4) Evidence of the true explanation of the event must be more readily accessible to the defendant than to
the plaintiff. Locke v. Pachtman, 446 Mich. 216, 230 (1994)

Canada:
- SC was worried that res ipsa loquitur was being applied incorrectly
- In Canada, res ipsa has been largely abolished
CAUSE-IN-FACT

The conventional test to determine cause in fact is the but for test:
1. The harm that is alleged to have been caused by the defendant must be identified
2. The specific act or acts of negligence by the defendant must be isolated
3. The trier of fact must mentally adjust the facts so that the defendant’s conduct satisfies the
standard of care of the reasonable person, be sure to leave all other facts the same
4. It must be asked if the plaintiff’s harm would have occurred if the defendants had been acting
with reasonable care.
5. Would the plaintiff’s damage have occurred but for the defendant’s negligence?
a. It is not necessary to prove that the defendant’s negligence was the sole cause or the
predominant cause of the plaintiff’s damage
i. Athey v. Leonati (SCC 1996): Plaintiff had a pre-existing injury. On the balance
of probabilities, the trial judge found that the defendant’s negligence was a cause
of the loss and consequently the defendants were 100% liable
The burden of proof in respect of cause in fact is on the plaintiff. The trier of fact must be persuaded that
the defendant’s negligence probably caused the plaintiff’s loss.
• Marek v. Southern Enterprises, Inc. (Texas 1936): The defendant owner was found negligent
because the fireworks had been going off in the theatre throughout the show and the accident
would not have happened had they acted more promptly
• East Texas Theatres v. Rutledge (Texas 1970): It had not been established on the balance of
probabilities that the bottle thrower was one of the rowdy persons who would have been ejected
had due care been taken

MATERIAL CONTRIBUTION TEST: Under this test, the conduct of both defendants is regarded as a
cause in fact because it materially contributed to the loss.
• Court has affirmed that the material contribution test was applicable where the ‘but for’ test was
unworkable and that a contribution was material if it was not de minimis.
o It is not clear when the ‘but for’ test will be unworkable
o There was no discussion of the meaning of material or de minimis
o There is some doubt about whether the test required proof of a material contribution of
the harm
• Resurface Corp. v. Hanke (SCC 2007): It is confirmed that the basic and primary test of causation
is the but for test. The material contribution test is applicable only in exceptional circumstances
where two preconditions are met:
o It must be impossible because of factors beyond the plaintiff’s control for the plaintiff to
prove the defendant’s negligence caused by the plaintiff’s loss on the ‘but for’ test
o The harm suffered by the plaintiff must be of a kind that is within the scope of risk
generated by the defendant’s negligent conduct
• The court identified two situations where the material contribution test is to be applied: (1) Where
it is impossible to say which of two simultaneous negligent acts caused the harm; (2) Where it is
 impossible to prove what a particular person in a causal chain would have done had the defendant
not been negligent.

AUGMENTED RISK RULE: Requires the plaintiff to prove that the defendant was negligent and that
the harm suffered by the plaintiff was in the scope of the risk created by the defendant’s negligence.
• McGhee v. National Coal Board (House of Lords 1972): The only negligence was to not provide
the worker with adequate shower facility. A material increased of the disease may be equated
with a material contribution to the disease and it concluded that the defendant’s act was a cause of
the dermatitis.
o Lord Wilberforce: Proof by the plaintiff that the defendant was negligent, coupled with
proof that the plaintiff’s loss was within the scope of the risk created by the defendant’s
negligence as sufficient to reverse the burden of proof of causation.
• Snell v. Farrell (SCC 1990): The court reasserted the conventional but for test and the traditional
burden of proof. The court was not convinced that a change in the law was necessary. It called for
a flexible, pragmatic and common-sense approach.

CLEMENTS V. CLEMENTS (SCC 2012)

Injured in a motorcycle accident caused by a nail in the tire. Plaintiff argues it was the fault of the D for
loading the bike too full. Generally, a plaintiff cannot succeed unless she shows as a matter of fact that
she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to
take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s
negligence caused her loss. Scientific proof of causation is not required.

Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to
risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred
“but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b)
the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact
was the necessary or “but for” cause of her injury, because each can point to one another as the possible
“but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

ALTERNATIVE LIABILITY

If all the negligent persons are joined at defendants, the burden of proof of causation is reversed and each
defendant is held jointly and severally liable (each defendant is fully liable for the plaintiff’s loss) unless
he can establish on the balance of probabilities that he did not cause the loss to the plaintiff (Cook v.
Lewis).

• Alternative liability is normally justified on the grounds that all of the defendants are wrongdoers,
they normally have better information of the circumstances of the accident than the plaintiff, they
may have impaired the plaintiff’s power to prove cause in fact, and, give the small number of
defendants, there is a high likelihood that any one of them caused the loss.
JOINT TORTFEASORS (CONCERTED ACTION)

Broadly speaking, this arises where defendants have some special relationship or they participate in a
common venture or joint enterprise involving tortious conduct.
1. One who instigates or encourages another to commit a tort
2. An employer and employee are joint tortfeasors in respect of a tort committed by the employee
within the scope of his employment
3. Principal and Agent
 4. Residual fact-specific category covering other instances of concerted action by two or more
involving the commission of a tortious act

Manitoba Tortfeasors and Contributory Negligence Act: All tortfeasors may be sued by the plaintiff in
the same action and the defendant may third party and potential tortfeasor overlooked by the plaintiff. The
liability of multiple tortfeasors is joint and several.

MARKET SHARE LIABILITY

The idea of a collective liability of this nature has not been addressed by Canadian courts as of yet.
Liability may be imposed on each defendant in proportion to its share of the market; consequently, the
culpability is measured by the risk each defendant created to the American public at large. Each defendant
is severally (individually liable) for its proportionate share of the plaintiff’s loss.

LOSS OF A CHANCE

NOT IN CANADA. Once loss of chance is defined as a distinct injury, the causation problem disappears,
and damages may be assessed on a probabilistic basis.
• Cottrelle v. Gerard (ON CA 2003): On the balance of probabilities the defendant did not cause
the harm. If plaintiff lost a 60% chance of salvaging her leg liability would be imposed because
on the balance of probabilities, the defendant’s negligence did cause the harm.

CAUSATION: STARE NON DECISIS BY EDWARD FEEHAN

Cook v. Lewis: If plaintiff A has proven that he was negligently injured by defendant B or defendant C
but is unable to establish which of the two caused the injury, the action must fail against both unless there
are special circumstances to render the rule inapplicable. The burden then falls onto both defendants to
exculpate themselves.
Bonnington Castings v. Wardlaw: He must make clear at least that on a balance of probabilities the
breach of duty materially contributed to his injuries.
McGhee v. National Coal Board: (1) the plaintiff need only prove the defendant created a risk of harm
and that the injury was in the ambit of risk, once this is shown, the defendant can show another cause; (2)
that there is no difference between materially contributing to the risk of harm and materially contributing
to the risk itself
Wilsher v. Essex Area Health Authority: Affirmation of the but for test
Snell v. Farrell: Application of a common-sense approach, the plaintiffs were not handcuffed by an
onerous burden to prove causation with scientific certainty
Athey v. Leonati: See explanation on page 10
Hanke: material contribution test should only be applied when the but for test is unusable.
- The test for causation is the ‘but for’ test in all cases, but one exception – where it is impossible
to prove “but for” and you can prove someone’s actions or omissions created an ambit of risk and
someone was injured and that risk was foreseeable, then you can discard the but for test and apply
the material contribution test.
 DEFENCES TO NEGLIGENCE
In a loss shifting system of corrective justice, defences are integral to achieve a fair result between the
litigants. When compensatory and loss distribution goals predominate, defences tend to be perceived as
impediments to addressing the compensatory needs of plaintiffs.

CONTRIBUTORY NEGLIGENCE
Contributory negligence is the failure of the plaintiff to take reasonable care for her own safety, which
contributes, to the accident or loss. Under the common law, contributory negligence was a complete
defence to an action in negligence.
• Last Clear Chance Rule: In cases where the defendant had the last, clear opportunity to avoid the
accident, the defendant was the sole cause of the accident and fully responsible for the plaintiff’s
losses
o Ontario Negligence Act (S. 3): In any action for damages that is founded upon the fault
or negligence of the defendant if fault or negligence is found on the part of the plaintiff
that contributed to the damages, the court shall apportion the damages in proportion to
the degree of fault or negligence found against the parties respectively
o Bow Valley Jusky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., (SCC 1997): For when
contributory negligence is set up as a shield against the obligation to satisfy the whole of
the plaintiffs claim, the principle involved is that, where a man is part author of his own
injury, he cannot call on the other party to compensate him in full. “Defendant must
prove that the plaintiff failed to take reasonable care and from doing so, contributed to his
own injury. The standard of care is no more than a person protecting his or her own
property.”
▪ A person is guilty of contributory negligence if he ought reasonably to have
foreseen that, if he did not act as a reasonable, prudent man, he might be hurt
himself; and in his reckonings he must consider the possibility of others being
careless."
o With the clear chance rule, the party that had the last clear chance is deemed 100% at
fault, however, a plaintiff may be responsible for some apportionment of damages
depending on their contribution
• Types of Contributory Negligence
o Plaintiff’s negligence can the cause of the accident: A worker suffered an epileptic fit
and fell from a ladder. The court allocated the loss between the plaintiff and the
defendant for failure to inform and failure to provide scaffolding (Cork v. Kirby MacLean
Ltd. English CA 1952)
o Plaintiff put himself in foreseeable harm: A passenger who chooses to get into a car
with an impaired driver
o Failure of the Plaintiff to take reasonable safety measures: Failure to use a seatbelt
• Consideration is given to the same factors as are influential in deciding a defendant’s negligence.
The plaintiff’s negligence must contribute to the harm, but the assessment of contributory
negligence is not made on the degree to which the conduct of each party caused the harm. Courts
will look at comparative blameworthiness not the degree to which the action caused the harm.
o Conventional: Courts either reduce damages by 20%-30% or they split the losses
o Arbitrary: Courts are often not particularly sensitive to the degree of blameworthiness
o Lenient: Reduction of damages and the application of the standard of care
▪ Walls v. Mussens Ltd. (NB 1969): Court applied the standard of a reasonable
person rather than the standard of the reasonable service station operator, it
invoked the “agony of the moment” rule even though the fire was initially small,
and it concluded with what an ordinary, prudent man might have done.
 • A modest reduction in an award of damages for contributory negligence is likely to be made
when the protective measures are common practice, common sense, affordable and effective

VOLUNTARY ASSUMPTION OF RISK (VOLENTI NON FIT INJURIA)

The defence of voluntary assumption of risk arises where a plaintiff has indicated that she consented to
the risk of harm generated by the defendant’s negligence. IT IS A COMPLETE DEFENCE. This is a
common law doctrine and a very popular defense. If someone willingly places themselves in a position
where some harm may result knowing that the harm may result, cannot hold someone liable in tort.
• Modern test arises from drunk drivers whose negligence injured their willing passengers
o The defendant must prove an express or implied agreement between the parties whereby
the plaintiff has consented to accept both the physical and legal risk of injury from the
defendant’s negligence
▪ Physical risk is generally easy to prove
▪ Legal risk requires proving that the plaintiff agreed to abandon his right to sue
the defendant in negligence → This is difficult to prove.
▪ Dubé v. Labar (SCC 1986): The court stressed that voluntary assumption of risk
is inapplicable in the great majority of cases, and, more generally, that it is rare
for a plaintiff to consent genuinely to the risk of the defendant’s negligence
• A frequent characteristic of these cases is joint planning and participation
for both the plaintiff and the defendant in an evening of heavy drinking
or the active encouragement of the plaintiff in the defendant’s excessive
use of alcohol or other wrongful conduct
• Crocker v. Sundance Northwest Resorts Ltd. (SCC 1988): Intoxicated plaintiff raced down a
mogul hill and was injured. Justice Wilson expressed doubt that the plaintiff, given his degree of
intoxication, could even be seen as appreciating and accepting the physical risk of injury. Proof of
an agreement to accept the legal risk was, on the facts, nearly impossible
A waiver is not normally enforceable unless reasonable notice of its restrictive terms has been given to
the plaintiff (Contract law). A waiver is prima facie enforceable subject to contra proferentum.
• Dyck v. Manitoba Snowmobile Association, Inc. (SCC 1985): A volunteer whose negligence
caused the plaintiff snowmobiler to crash his machine at the end of a race was held liable
• Crocker v. Sundance Northwest Resorts Ltd. (SCC 1988): The court refused to enforce a signed
waived because the plaintiff did not read it and did not understand that it was anything more than
a form to enter the race
How to get out of Waivers:
• Non Est Factum – The signer, through no carelessness on his or her part, is mistaken as to the
document’s nature and character;
• Fraud or Misrepresentation – The signer is induced to sign the contract by fraud or
misrepresentation;
• Objective Lack of Consensus Ad Idem - Where it is unreasonable for a person relying on the
signed contract to believe that the signer really did assent to its terms. A defendant will likely
have to argue that they took reasonable measures to point out the specific important terms of the
contract (bold, highlight, underline, etc.). An objective lack of Consensus Ad Idem has a two-
part test:
• (1) In the circumstances, would a reasonable person have known that the Plaintiff
did not intend to agree to the Releases that he signed?
• (2) Alternatively, did the Defendant take reasonable steps to bring the content of the
Releases to the Plaintiff’s attention?
 • Unconscionable – the person who claims the benefit of the contract abused its bargaining power
and preyed upon the person who signed the contract; and 2) the bargain was improvident
• Public Policy – The residual power of a court to decline enforcement exists but, in the interest of
certainty and stability of contractual relations, it will rarely be exercised. There is an overriding
public policy that outweighs the very strong public interest in the enforcement of contracts.

DIXON V. KAMLOOPS EXHIBITION ASSOCIATION (BCCA 2003)

Plaintiff was injured in a snowmobile race. The plaintiff had signed a waiver before the race and the
defendant sought to rely on that waiver as a defence. Court found that the waiver was sufficiently clear so
as to permit defendant to rely on its defence. Waiver clearly extended to practice for race as well as the
race itself. The waiver referred to injury arising out of or related to the events. The race was clearly the
event that was subject to the release.

ILLEGALITY (EX TURPI CAUSA NON ORITUR ACTIO)

No action may arise from a base cause. It embodies the intuitive reaction that plaintiffs who are involved
in illegal conduct and other serious wrongdoing should not be permitted to engage the legal system to
pursue a remedy.
• Some judges began to suggest that the defence was not restricted to situations of joint criminal
enterprise but might be available wherever the conduct of the plaintiff giving rise to the claim is
so tainted with criminality of culpable immorality that as a matter of public policy, the court will
not assist him to recover. This was short lived
• Hall v. Hebert (BCCA 1991): The primary issue was the applicability of the defence of illegality
since the plaintiff’s conduct in driving while intoxicated was both negligent and illegal. The court
held that the defence can operate only when the integrity of the legal system is threatened by
allowing the claim.
o A plaintiff is not permitted to use a tort action to make a direct profit from illegal conduct
o A tort action may not be used to circumvent, subvert, or negate a criminal penalty
• Livent v. Deloitte & Touche
o Distinguished between directors and the company itself. The court holds that they will
not find illegality in the circumstance (para 98). The defense of illegality bars an
otherwise valid action in tort on the basis that the plaintiff has engaged in illegal or
immoral conduct and, therefore, should not recover (citing Herbert).
• Case study from class: ATV that was stolen and then a warranty claim was made on it

INEVITABLE ACCIDENT
The defence of inevitable accident is, therefore, something of a legal curiosity, neither helpful, nor
particularly harmful. It merely emphasizes the centrality of fault and indicates that a defendant may try to
rebut the plaintiff’s case by adducing evidence of his own showing that reasonable care was taken, and
the accident was unavoidable.

VICARIOUS LIABILITY (EMPLOYER/EMPLOYEE)

Vicarious liability is not a discrete tort. It describes the responsibility that one person may have for the
torts of another because of the relationship between them. Vicarious liability is described as strict because
it requires no proof of personal wrongdoing by the person subject to it. The establishment of the requisite
relationship between the defendant and the tortfeasor is the key to vicarious liability. It merely provides
the plaintiff with an alternative defendant who is more likely to be solvent, to have liability insurance, or
to be able to spread the loss in some way.

An employer is strictly liable for the torts of her employees committed within the course of employment.
The justification of such things is the provision of a just and practical remedy and the deterrence of future
harm. The rules of vicarious liability are designed to secure the responsibility of the employer and the
principal not to exonerate the tortfeasor.
• An employee is a person who is under the direct control and supervision of the employer who is
empowered to tell the employee how and when to do the work. It covers most tortious acts that
are broadly incidental or related to the employment function. The courts have addressed this issue
by drawing a distinction between prohibitions about how the work is to be done and prohibitions
about what work is to be done. Deliberate wrongdoing is intuitively outside the scope of
employment.
o “Borrowed Servant”: factual presumption that the employer remains vicariously liable
during that time. Relevant factors in this determination include the nature and duration of
the secondment, who has the power of dismissal and whose equipment and tools are
being used
▪ Mersey Docks & Harbour Board v. Coggins & Griggths (Liverpool) Ltd. (House
of Lords 1947): Adopted a control test and found that an employee could not
have more than one employer
▪ Blackwater v. Plint (SCC 2005): The court recognized that an employee may
have more than one employer
• Independent contractors are not under the employer’s control. They are hired to complete a
particular task and are not controlled by the terms of their contract with the employer, not by the
personal instructions of the employer
• Boucher v. Walmart: Claim for constructive dismissal. Court found for the plaintiff and awarded
damages against Wal-Mart and the former manager

Control Test Entrepreneur Test Organization Test

• An employee is a person Amplifies the factors that are Concentrates on the degree to
who is under the direct taken into account in addition which the worker is integrated
control and supervision to control including into the employer’s business
of the employer who is considerations of the ownership enterprise.
empowered to tell the of tools, the chance of profit
employee how, when and the risk of loss
and where to do the
work.
• Independent contractors
are not under thme
employer’s control.
They are hired to
complete a particular
task and are controlled
by the terms of their
contract with the
employer not the
personal instructions of
the employer.
6771122 Ontario Ltd v. Sagaz Industries Canada, Inc (2001): There is no one conclusive test. Factors to
consider are:
• Whether the worker provides his or her own equipment
• Whether the worker hires his or her own helpers
• The degree of financial risk taken by the worker
• Worker’s opportunity for profit in performance of his or her tasks

These considerations will help make the distinction between an Employee v. Independent contractor

Bazley v. Curry (SCC 1999): A court must determine (1) if the situation is controlled by unambiguous
precedent, in which case it must be applied and (2) if it is not, the decision turns on policy considerations
supporting vicarious liability generally, namely the provision of a just and practical remedy and
deterrence of future harm.
• The policy considerations include whether the employee is placed in a position that creates or
enhances the risk of the wrongdoing.
• Opportunity afforded to the employee to abuse his power
• The extent to which the act was related to friction, confrontation, or intimacy inherent in the
employer’s enterprise
• The extent of the power conferred in the employee in relation to the victim
• The vulnerability of potential victims to the wrongful exercise of the employee’s power

Jacobi v. Griffiths (SCC 1999): Boys and Girls clubs of Canada. No liability was found on the basis that
the finding would impose an undue burden on all non-profit organizations whose activities involve some
interactions between adult employees and children. The court also emphasized the connection between
the enterprise risk and sexual assault
• McLachlin dissented and said that the employer had sufficiently increased the risk of sexual
assault to warrant a finding of vicarious liability

DOE V. BENNETT (SCC 2004)

Father Bennett was sued by Doe and 36 other plaintiffs alleging that Father Bennett had sexually abused
them. The plaintiffs claimed against the Father, St. George’s, the Bishop, the Archbishop and the Roman
Catholic Church. The liability of St. George’s is the only thing in issue in this case.

First a court should determine whether there are precedents that unambiguously determine whether the
case should attract vicarious liability. If a prior case does not strictly suggest a solution, the next step is to
determine whether vicarious liability should be imposed in light of the broader policy rationales behind
strict liability.

Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts
in two respects: First the relationship between the tortfeasor and the person against whom liability is
sought must be sufficiently close. Second, the wrongful act must be sufficiently connected to the conduct
authorized by the employer.

At the heart of the inquiry lies the question of power and control by the employer; both that exercised
over and that granted the employee. Other factors to consider:
• Opportunity afforded to the employee to abuse his power
• The extent to which the act was related to friction, confrontation, or intimacy inherent in the
employer’s enterprise
• The extent of the power conferred in the employee in relation to the victim
 • The vulnerability of potential victims to the wrongful exercise of the employee’s power
• Bishop provided offender with opportunity to abuse his power → They found this akin to an
employer employee relationship, and although no evidence that they knew what was happening,
there was a nonetheless sufficient relationship of proximity to meet that part of the test

Principal/Agent
The general rule is that the principal is vicariously liable for the torts of her agent committed within the
scope of her actual or apparent authority (during the reason they’re hired, for example). This is the
situation in a partnership.

Case Study: Hagood v. Pride Marine

Car crash in Michigan involving Canadian independent contractor
Choice of law issues – Michigan/Ontario?
Could defendant be considered employee in one jurisdiction and independent contractor in the other?
Cross-border legal comparison
Hoffman Control test: Depends on facts of individual case but Canadian course does a better job of listing
their factors as cites through Sagas
- Is there some agreement? Is there a joint effort to contain business? Do they have a business card,
or do they have a separate office, who pays the expenses? Do they bind the country in some way,
do they own some share in that company, etc...? You need to look at all of these factors and plug
them all into your case scenario

“The central question is whether the person who has been engaged to perform the services is
performing them as a person in business on his own account. In making this determination, the
level of control the employer has over the worker's activities will always be a factor. However,
other factors to consider include . . . "

Vicarious Liability by Statute

"The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason
of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or
street car was without the owner’s consent in the possession of some person other than the owner or the
owner’s chauffeur." Highway Traffic Safety Act

Independent Contractors (Non-Delegable Duties)

There are some truly exceptional circumstances where the employer is subject to statutory and common
law duties of care that are non-delegable.
• Strict statutory duties to do a positive act, and duties of care both on employers to maintain a safe
work environment and on bailees with chattel entrusted to them, conduct creates a public or
private nuisance, extra-hazardous activites
• The responsibility of an employer in respect to a non-delgable duty is confined to wrongful acts
in the performance of the task or work that the independent contractor was hired to do
• Lewis (Gaurdian ad litem of) v. British Columbia (SCC 1997): The court held that the province
was under a non-delegable duty of care and was liable because care had not been taken

Direct Liability: Employer/Principal

• Is vicarious liability claim necessary?
• Negligent Hiring?
Trucking litigation examples
• Independent duties of employer/principal?
 STRICT LIABILITY

The distinguishing feature of the strict liability torts is that there is no need to prove that the defendant
was guilty of any wrongful conduct.
• It can optimize both the deterrent and compensatory impact of tort law by demanding exceptional
care and expanding the range of persons who receive compensation
• Courts have not been willing to embrace strict liability formally or theoretically and to utilize it
openly as a general basis for the allocation of modern accident losses

THE RULE IN RYLANDS V. FLETCH ER

“We think that the true rule of law is; that the person who for his own purpose brings on his lands, and
collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he
does not do so, is prima facie answerable for all the damages which is the natural consequence of its
escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps
that the escape was the consequence of vis major, or the act of God”
• There are those who would abolish the rule on the grounds that it serves little practical purpose
and that the torts of negligence and nuisance are adequate to the task
• Marginalize the rule as a subspecies of nuisance law dealing with property losses cause by
isolated escapes from neighboring property
• The rule ought to be emancipated from the qualifications and exceptions that confine it and be
replaced with a modern tort that imposes strict liability for all losses generated by abnormally
dangerous activities.

The plaintiff must show: (1) a non-natural use of the land, (2) an escape of something likely to do
mischief from the land, and (3) damages.

Non-Natural Use
• Means dangerous, extraordinary, special, and of no general benefit to the community. The Court
defined a non-natural use of land as a special use of land bringing with it increased danger to
others and must not merely be the ordinary use of the land or such a use as is proper for the
general benefit of the community.
• One consistent factor in determining whether or not a land use is non-natural is the creation of an
increased danger
• Land use that has a great magnitude of danger independent of the particular circumstances of the
case; and
o The storage of water in bulk, the manufacture and use of explosives, fumigation with
poison, the bulk storage or transportation of natural gas, propane, dangerous chemicals,
or gasoline
• Land use that is not always dangerous but is so in the particular circumstances of the case
o The degree of danger
o The utility and normality of the land use
o The circumstances of time and place
▪ Mihalchuk v. Ratke: Herbicides in yard
▪ Gertsen v. Metropolitan Toronto: garbage fumes were dangerous because of the
location

The Escape of Something Likely to Cause Mischief: Canadian Courts have flirted with the idea of a
broad responsibility for all losses generated by ultra-hazardous activities, but the need to establish some
sort of an escape continues to be an essential component
Damage: The House of Lords has held that personal injury losses are not recoverable under the rule in
Rylands since the tort, in its view, applies solely to adjust property losses

Defences: Consent, Mutual Benefit (Municipal sewer systems), Default of the Plaintiff, Act of God,
Statutory Authority, Illegality

ALRIDGE V. VAN PATTER (ONTARIO 1952)

Plaintiff was driving a stock car on a dirt track. He lost control of the car and the car exited the fence and
struck the defendant, causing serious injuries. The rule in Rylands extends to personal injury if the
damage is foreseeable. The driver of the stock car was not liable because he was not the owner of the
land.

Deavitt v. Greenly
• [56] The Rule in Rylands v. Fletcher imposes strict liability for damages caused to a plaintiff's
property by the escape from the defendant's property of a substance "likely to cause mischief"
See: Smith v Inco Limited, 2011, ONCA 628.
• [57] For the Rule in Rylands v Fletcher to apply, the plaintiffs must show that the Greenlys made
a non-natural use of their land by bringing something onto their land which was likely to cause
damage if it escaped and that the escape of that substance did in fact cause the plaintiffs'
damages.
• [58] The plaintiffs have not provided any evidence that, if accepted, could demonstrate that the
spreading of biosolids on a farmer's field could constitute a "non-natural" use of their farm fields.
In my view, the use by a farmer of fertilizer/nutrients/pesticides on a farm field would not
constitute "non-natural" use of the property and the Plaintiffs' claim on the Rylands v. Fletcher
Rule would fail for that reason alone.
• [59] As well, there is no cogent evidence before me that biosolids or the odour from biosolids
could be considered a "dangerous product" escaping onto the neighbour's property.
• [60] The Plaintiffs' claims under the Rylands v. Fletcher Rule is accordingly dismissed.

PRODUCT LIABILITY

MANUFACTURING DEFECTS

Donoghue v. Stevenson (House of Lords 1932): Established the initial duty to take reasonable care to
manufacture products that are free of dangerous defects.

“A manufacturer of products, which he sells in such a form as to show that he intends

them to reach the ultimate consumer in the form in which they left him with no
reasonable possibility of intermediate examination, and with the knowledge that absence
of reasonable care in the preparation or putting up of the products will result in an
injury to the consumer’s life or property, owes a duty to the consumer to take reasonable
care.”
• The requirement that the product must be in the same condition is now taken to reflect
the normal requirement of cause-in-fact the need to show that the damage was caused by
the manufacturer’s negligence and not by the negligence of some other person or by the
normal deterioration of the product
o Duty extends to all consumer products from manufacturer to component parts,
installation etc.
 • The product is in compliance with intended specification and design and not dangerously
defective
• The expansion of liability that followed Donoghue was fuelled by policies of accident
prevention, compensation, and loss distribution
o Canada Consumer Product Safety Act: Focused on product distribution in the
country. The legislation protects the public by addressing or protecting dangers
to human health or issues to safety Allows for government recalls.
▪ Regulated by Health Canada (metal kite wire, pointed lawn darts, baby
walkers with wheels)
▪ The biggest change is if someone is hurt by a product → Everyone in a
consumer product distribution change has an obligation to report to
health Canada if there is notice of death or serious adverse impact on
health or a defect that may result in a serious adverse impact on health,
or if someone recalls the product.
• Beaufort v. UPS Freight: Growler spontaneously exploded without any sort of impact.
There was no evidence that it was actually defective, so it must have been a problem with
the transportation of the bottle. Summary judgment was granted.

THE DUTY TO WARN

Lambert v. Lastoplex Chemicals Co. (SCC 1971): Court held that there is no duty to warn arising
where the product is placed on the market for use by the general public, the product is dangerous
when used for its intended purpose, the public does not have the same awareness of the danger,
and the public does not have the same awareness of the danger as the manufacturer. Flammable
sealant that ignited a pilot light. The manufacturer must take reasonable care to provide a
warning.

• Compliance with statutory rules and regulations pertaining to the safety of product may
not be sufficient to discharge the common law duty to warn
• Less detailed warnings may be required where products are supplied for professional,
commercial, or industrial purposes.
• Warnings may also be given of manufacturing defect and design flaws when they
become known to the manufacturer
o Must consider the nature of the product, size of the warning, how much of a
warning is required. Manufacturers must also consider that the product may be
misused

Medical Products and Learned Intermediary (Subjective Test)

Holis v. Dow Corning Corp (SCC 1995): It was sufficient for the manufacturer to provide the
requisite information to a learned intermediary who is then in a position to pass it on to the
patient. The Court state the disclosure could be made to a learned intermediary where a product is
highly technical in nature and is intended to be used only under the supervision of experts or
where the nature of the product is such that the consumer will not realistically receive a direct
warning from the manufacturer before using the product. The manufacturer did not inform the
physician who could then inform the plaintiff.
• Subjective (TEST ADOPTED): The court should apply a subjective test in products
liability cases when considering whether a patient would have consented to medical
treatment.
• Objective: The most reliable approach to determining whether a patient would have
consented to medical treatment if properly warned is to test her assertion that she would
 not have consented by objective evidence as to what a reasonable person would have
done.
• There can be a warning after the sale. These types of warnings apply to highly technical
products that are intended to be used with supervision
• You have to use a modified objective test. Would a reasonable person in the plaintiff’s shoes who
had all the proper information would have decided not to have the surgery? In this case they
found that a reasonable person in Ms. Hollis’ shoes would not have the surgery and causation is
established.

DESIGN DEFECTS
Reasonable Care in Design
• Reasonable efforts to design products reasonably safe for intended purpose
• Reasonable expectations test
• Risk-utility
• Crashworthiness

Risk Utility Test seeks to determine if the utility of the product’s design outweighs the
foreseeable risks of the design
• What are the dangers?
• What is the nature of the product?
• Is there a viable alternative?
• Cost of alternatives
• Risks of alternative designs

Rentaway Canada Ltd v. Laidlaw Transport Ltd. (1989): Consideration was given to the degree
danger arising from the design, the nature of the product, the utility of the design, the availability
of a safer design, and the functionality, the cost and the risks of that alternative design. Both
headlight on a single circuit.
• A balance must be drawn among a number of factors, including the foreseeable danger,
the gravity of the danger, the expense and availability of measures to improve the
crashworthiness or protective quality of the product and the impact of those measures on
the utility of the product, and its attractiveness to consumers2

DEFENSE: MISUSE

Misuse of a product: Separate and distinct defence from contributory negligence or assumption of risk.
Injury sustained through use of product in a manner neither intended nor reasonably expected. TEST:
misuse so unlikely that it was not reasonably foreseeable to manufacturer

CASE STUDY: SEAT BELTS/JOHN MELLEN

Safety Belt Defect Claims. Should Have Used 3-Point Belt

• Inertial Unlatch During Rollover

2
US Differences: No strict liability in Canada, protecting top secret documents (deemed undertaking in
Canada), spoliation sanctions (more severe in USA), Limited Discovery, Joint and Several Liability more
common in Canada, Loser Pays, Damage caps are more common in Canada
 o Defective Design and Manufacture
o Failure to Warn Consumer
o Failure to Test
• Manufacturers can assert several affirmative defences including: State of the art, misuse, driver
error, post manufacture modifications, exceeds government standards, belt unlocked prior to
incident
• FORD’S SECOND LARGEST COUNTRY OF PRODUCTS LIABILITY LITIGATION IS
BRAZIL
o Ford’s litigation strategy is to litigate as much as possible to be found to have no duty
rather than to settle lots of claims and let people know that you are at fault

INTENTIONAL TORTS AGAINST THE PERSON

Intentional torts operate more as a conventional loss shifting system emphasizing corrective justice and
allocating responsibility between individual litigants. The victims of intentional wrongdoing are forced to
place must more reliance on their own first party insurance and on governmental compensation schemes.
Persons suffering physical injury often have no first party disability injury compensation schemes or on
the social welfare system.
• Conduct, is not, however intentional unless the defendant either desires the consequences of his
conduct or the consequences are substantially certain to result from the conduct
o Actual intent to cause the injury; or
o Conduct is also intentional if the consequences, while not, desired are substantially
certain to result from the defendant’s conduct
o Transferred intent arises, for example, when A tried to shoot B but misses and shoots C,
whom he had not actual intent to injure
o Constructive intent can be found in such cases as well
• A defendant may be incapacitated from forming the requisite intent by mental disability or
infancy
o The predominant view is that a defendant is not liable if he did not appreciate the nature
and quality of his act. A defendant will be liable if he knew what he was doing but didn’t
know that was wrong

ASSAULT
ANY DIRECT, INTENTIONAL ACT THAT CAUSE A PERSON TO APPREHEND IMMEDIATE
HARMFUL OR OFFENSIVE BODILY CONTACT IS AN ASSAULT.
• The plaintiff must actually apprehend an immediate battery and that apprehension must be
reasonable in the circumstances. There is, however, no requirement that the plaintiff be afraid.
This generally accompanies another cause of action.
• Threats of future violence will not suffice. There must be a threat of immediate bodily contact
o Stephens v. Myers (England 1830): The defendant advanced on the plaintiff in a
threatening manner (was about to toss a punch) but was intercepted and restrained. The
court found that an assault had taken place.
• Mere words cannot amount to an assault: this might be doubted in the face of modern
communications and technology
• Passive conduct cannot amount to an assault: Generally, does not generate an apprehension of
fear but it could?
• Defendant must have means of carrying out the threat: this view is now fully discredited, and
liability will be imposed so long as the plaintiff reasonably apprehended fear
 • Conditional Threats Tuberville v. Savage (England 1669): No liability for conditional threats. The
modern view is that threats of violence coupled with a condition that the speaker has no right to
impose, the compliance with which is essential to purchase one’s safety, is an assault.

BATTERY
A DIRECT, INTENTIONAL, AND PHYSICAL INTERFERENCE WITH THE PERSON OF
ANOTHER THAT IS EITHER HARMFUL OR OFFENSIVE TO A REASONABLE PERSON IS
A BATTERY.
• Freedom from physical interference is so highly valued that battery is actionable without proof of
damage
o Actual bodily contact is not essential to establish a battery. To grab a person by her
clothing or to snatch something from the plaintiff’s hand is sufficient (interference with
bodily security)
o The plaintiff does not need to be aware of the battery at the time that it takes place
o The plaintiff need only prove that the defendant directly interfered with his person in a
harmful or offensive way → The defendant then carries the burden of proof that his
conduct was neither intentional nor negligent or that some legally recognized defense
applies
• Directness remains an essential element for liability not only in battery but in all intentional torts
o Indirect, intentional acts probably remain independently actionable under a residual and
innominate tort
• In a claim of battery, the defendant is not liable only for the foreseeable consequences but all
consequences of his battery
• The most frequently committed batteries are acts of criminal violence, but tort litigation holds
little promise of compensation for the victims of criminal violence
o There are some state funded compensation systems, specifically in the area of sexual
violence
▪ The plaintiff, however, may be more interested in securing the accountability of
the offender and a public recognition of the extent of the defendant’s
wrongdoing. There may also be a hope that a public confrontation with the
defendant and judicial recognition of the defendant’s responsibilities will provide
some therapeutic benefits and promote the plaintiff’s psychological and
emotional recovery
▪ Most limitations legislation postpones the running of the limitations period until
the full extent of the emotional and psychological harm is known
• The discoverability principle has been complemented by legislative
initiative that dispense with limitation periods for sexual misconduct,
including sexual assault, in carefully defined circumstances.

FALSE IMPRISONMENT
A DIRECT, INTENTIONAL IMPRISONMENT OF ANOTHER PERSON IS FALSE
IMPRISONMENT. IT IS ACTIONABLE WITHOUT PROOF OF DAMAGE. THERE MUST BE
A COMPLETE RESTRICTION ON THE PLAINTIFF’S PHYSICAL LIBERTY.
• Bird v. Jones (England 1845): Partial obstruction and disturbance of a right of way is not false
imprisonment. There must be a complete detention of the plaintiff
o It is neither good sense nor good policy to make every obstruction in a modern urban
environment actionable. If an obstruction causes damages, a remedy may be available
under negligence or public nuisance
 • There is no Canadian authority on whether or not the plaintiff must be aware of the confinement.
Law suggests that it is not necessary, and this would be consistent with English decisions
• The defendant carries the burden of showing that her actions were neither intentional nor
negligent

MALICIOUS PROSECUTION
INITIATED BY THE DEFENDANT; TERMINATED IN FAVOUR OF THE PLAINTIFF;
UNDERTAKNED WITHOUT REASONABLE AND PROBABLE CAUSE; AND MOTIVATED
BY MALICE OR A PRIMARY PURPOSE OTHER THAN THAT OF CARRYING THE LAW
INTO EFFECT (Kvello v. Miazga 2009 SCC 51)

ROBERTS V. JO-ANN STORES, INC., ET AL. (2009)

Plaintiff was arrested outside of Bed, Bath and Beyond and was accused of stealing a sewing machine on
the basis that he had previously stolen merchandise from that store. The plaintiff had a history of mental
illness and depression. Plaintiff brought the following claims against Jo-Ann Stores:
• False arrest / wrongful imprisonment
• Intentional infliction of emotional distress
• Assault
• Battery
• Malicious prosecution
In order to defend an intentional tort suit like this, defense attorneys should (1) secure favorable
testimony; (2) establish which elements of the tort are not met; (3) locate analogous facts in the case law;
(4) file a motion for summary judgment. This case was ultimately dismissed on summary judgment.

INTENTIONAL INFLICTION OF NERVOUS SHOCK

THERE MUST BE OUTRAGEOUS OR EXTREME CONDUCT WITH PROOF OF ACTUAL
INTENT OR CONSTRUCTIVE INTENT TO CAUSE DAMAGE OF THE KIND SUFFERED.
THE PLAINTIFF MUST PROVE NERVOUS SHOCK WHICH IS DEFINED AS A
RECOGNIZED PSYCHIATRIC ILLNESS OR PHYSICAL HARM.3
• Wilkinson v. Downton (English QB): The defendant told the plaintiff that her husband had been
seriously injured which was false. The plaintiff became ill and suffered permanent physical
consequences. The court imposed liability on the basis that the defendant’s constructive intent to
harm the plaintiff
• The circulation or communication of false and shocking information, unwarranted accusations of
criminal wrongdoing or immorality made to the plaintiff and threats or future violence and other
terrifying conduct are likely to be sufficient to ground liability
o Clark v. R (FCA 1994): A pattern of behavior of sexual harassment of a female police
officer culminating in nervous shock was sufficient to impose vicarious liability on the
Crown
o Prinzo v. Baycrest Centre for Geriatric Care (OCA 2002): Liability was imposed in
respect of workplace harassment that was described as extreme, insensitive, and wanton
is disregard for the plaintiff’s health.

3
Contrast with USA Intentional Infliction of Emotional Distress which requires (1) outrageous or extreme
conduct; that is intentional or reckless; a reasonable person sustains severe emotional distress; and the
defendant’s action is the cause of the distress.
 • The plaintiff must prove nervous shock which is defined in the tort of negligence as a
recognizable psychiatric illness
o Radovskis v. Tomm (Man QB 1957): Mother was denied recovery because there was no
evidence of an actual illness
▪ In recent years, however, there has been some relaxation in the interpretation of
nervous shock and, under the cover of conventional doctrine, the courts are
edging towards recognizing severe emotional stress as sufficient, particularly
when the defendant’s conduct is utterly outrageous
• The defendant will be liable if his conduct targets a known vulnerability of the plaintiff.
o Timmermans v. Buelow (ON HCJ 1984): Where a landlord sent threatening and harassing
eviction notices to a tenant he knew to be in a fragile mental state, he was found liable.
• Frame v. Smith: The SCC refuses to apply nervous shock to cases of marriage breakdown and
consequential custody and access disputes4

MOORE V. BERTUZZI (2006)

Steve Moore brought an action against Todd Bertuzzi for a hit to the back of the head in an NHL game
that caused him to suffer a broken neck and effectively end his professional hockey career. In addition,
Moore’s parents claimed intentional infliction of nervous shock and loss of consortium?
In his defence, Todd Bertuzzi asserted that there was no intent to cause harm and cross claimed against
the owners of the Vancouver Canucks.

DEFENCES TO INTENTIONAL TORTS AGAINST THE PERSON

Most defences are complete defences, but provocation and contributory negligence are partial defences
that dictate a reduction of damages. The burden of proof to establish complete and partial defences is on
the defendant.

CONSENT
There are occasions where it is in the interests of an individual to agree to an intentional interference with
her person. The law recognizes the right of an individual to exercise her autonomy and consent to the
intentional interference with her person.
• Consent may be express or implied from the conduct of the plaintiff. Consent must be freely and
voluntarily given
o A consent given under the influence of drugs or given as a consequence of violence or a
threat of violence is invalid. Other serious forms of duress may invalidate consent
o In most situations consent can be revoked, however, there are some situations where for
public convenience, safety, and expense temporarily negate the power to revoke a
consent freely given.
Interpersonal Violence: Where parties have consented to fight, the loser will not be able to sue in battery
for the injuries suffered. Generally, the courts will carefully assess the scope of the mutual consent and
where it is exceeded by the use of a weapon or by the administration of a beating to a defeated foe,
liability will be imposed.

4
Contrast with the United States where the only area of non application is with internal church disputes.
Contact Sports: Players are protected from liability by the implied consent of all the participants to
physical interference that is an integral part of the sport. A line must be drawn between bodily contact that
is expected and that which is not.
• Manitoba Approach: Classifies all bodily contact in sport as prima facie a battery. The burden of
proof is then on the defendant to establish that the plaintiff impliedly consented to the battery. As
a general rule, the courts have held that implied consent extends to all batteries other than those
where the defendant intends to cause injury in contravention of the rules of the sport (Agar v.
Canning (MB QB 1965); Temple v. Hallem (MB QB 1989))
• British Columbia Approach: It is based not on a battery analysis but on basic negligence
principles. It incorporates the issue of acceptable and agreed risk into the application of the
standard of care that players in particular sport owe to one another.
o Zapf v. Muckalt (BCCA 1996): What would a reasonable competitor in his place do or not
do? The words “in his place” imply the need to consider the speed, the amount of body
contact, and the stresses in sport, as well as the risks the players might reasonably be
expected to take during the game, acting within the spirit of the game and according to
the standards of fair play. A breach of the rules may be one element in that issue but not
necessarily definitive on the issue

Medical Treatment: Medical treatment is an actionable battery unless the attending physician secures
the patient’s consent.
• Allan v. New Mount Sinai Hospital (ON HCJ 1980): The defendant was found liable in battery for
ignoring the patient’s specific prohibition of using her left arm and neither competence nor good
faith provided an excuse. A patient may limit the scope of consent
• It is common practice that hospitals use a variety of forms to obtain consent, there may not
always be conclusive of the issue. The courts must assess: the reality of consent, the mental
capacity of the patient, the language, the explanation given to the patient, and all surrounding
circumstances
o General words permitting a surgeon to do anything that is advisable or in the best interest
of the patient are probably not effective other than in situations of unforeseen
circumstances
o Reibl v. Hughes (1980): Failure to inform of the scope of the risks is not a battery, it is a
negligence claim
• If consent is revoked, the physician must comply immediately and stop the procedures unless
doing so will threaten the life of the patient or pose a serious risk of bodily harm
• The common law rule is that a mature minor has the ability to consent to medical procedures
o C (J.S.) v. Wren (AB CA 1986): The court concluded that the patient was a normal,
intelligent 16-year-old with sufficient understanding to terminate her pregnancy without
parental restraint.
• Mental capacity is also an issue that arises with consent. Guardian or Personal Directive may be
able to make medical decision. In the absence of statute or legal document, the court must rely on
the common law
o Malette v. Shulman (ON CA 1990): The written card prohibiting blood products was
clear, limited, and unequivocal. The defendant was held liable even though he had acted
in good faith and the treatment may have saved the patient’s life. The court also noted
that a physician who follows the directions cannot be found liable if the card no longer
reflects the wishes of the plaintiff.

Sexual Relationships: Any sexual or intimate physical contact is a battery unless there is a free and
voluntary consent to it.
 • Norberg v. Wynrih (SCC 1992): There was a power-dependency relationship between the
defendant and the plaintiff and that the defendant had exploited the plaintiff’s vulnerability to
secure her consent. Her consent was therefore invalid.
• The courts have traditionally drawn a distinction between fraud as to the nature and character of
the bodily interference, which does negate the plaintiff’s consent and fraud as to collateral
matters, which does not negate the consent
• Tort law is undecided on the implication of sexually transmitted illness
o One way is to hold that the ignorance of the danger is sufficient to vitiate the consent and
warrant imposition of liability in battery for all its consequences
o The concealment of sexually transmitted diseases may be actionable in negligence on the
basis that there is a special relationship between sexual partners which imposes a duty of
affirmative action to take reasonable steps to protect each other from the disease

SELF-DEFENCE
A person is permitted to use reasonable force to repel actual violence (a battery) or threat of immediate
violence (an assault). The court must consider the surrounding circumstances in their entirety: the nature
of the attack, the size and strength of the opponent, the force needed to repel the attack, the use of
weapons, the availability of non-violent means of defence. The defence must be in proportion to the
attack. Nevertheless, a deadly attack may be met with deadly force.

DEFENCE OF A 3 R D PERSON
A privilege to use reasonable force to defend a third person from violence or the threat of immediate
violence has been recognized.
DEFENCE OF PROPERTY
In some circumstances the possessor of land may use physical force to protect his property from unlawful
entry by another.
• If the trespass is peaceable→ must ask the person to leave and then force may be used to eject
him
• If trespass is hostile→ Force may be used immediately for the purpose of removing the intruder
o Under no circumstances may a possessor use deadly force or deliberately cause injury to
a trespasser
▪ Barbed wire, guard dogs, fences with spikes, and stone walls with jagged glass
will be regarded as reasonable deterrence
▪ Punitive or retributive devices like spring guns are not allowed

DISCIPLINE
The law continues to recognize a privilege on the part of parents and teachers to use reasonable force to
discipline children. The defendant must show that the force was used solely for the purpose of correction
and that the force was objectively reasonable.
• Canadian Foundation for Children, Youth, and the Law v. Canada (SCC 2004): Parents may use
minor corrective force of a transitory and trifling nature but there is no protection of any force
applied to a child under 2 or a teenager
o Teachers may use reasonable force only to remove a child from the classroom or to
secure compliance with an instruction
• Captains and pilots also have privilege to exercise reasonable force to secure the safety of their
ship or aircraft and its passengers
 NECESSITY
There are occasions where interference with the person can be justified on the grounds that it will achieve
a benefit which outweighs the wrong to such an extent that the wrong is to be forgiven. This is pretty rare
i.e. restraints in medical facilities.

LEGAL AUTHORITY (IMMUNITY)

Tort law has adopted various statutory provisions designed to protect governmental officials and private
citizens from criminal liability in the administration of the criminal justice system.
• SCOPE OF CITIZENS ARREST: Permitted to arrest a person who is found committing an
indictable offence, or a person who one believes on reasonable grounds has committed a crime
and is both escaping arrest and being freshly pursued by persons who have lawful authority to
arrest the person.
• An owner of a business/land/possessor can arrest a person whom she finds committing a criminal
offence on her land

ILLEGALITY (EX TURPI CAUSA NON ORITUR ACTIO)

This defence has largely fallen out of favour.

• Norberg v. Wynrib (SCC 1992): The defence of illegality is applicable only in rare circumstances
• Hall v. Hebert (SCC 1993): The court has restricted the defence to situations where the
imposition of liability would permit the plaintiff to profit from wrongdoing, evade criminal
sanction, or would in some other way undermine the integrity of the legal system.

SCIENTER ACTION

The plaintiff must prove that the animal was dangerous and also that the owner/keep knew that the animal
was dangerous (or has a known dangerous feature despite being normally non-dangerous).
• Ferae Naturae: Animals which, by their nature, are considered dangerous to humans
• Mansuetae Naturae: Harmless animals (dogs, cats, etc…)
• Control is essential, it implicates reasonable care focused on conduct. It also considers
foreseeability of possible harm by a lack of control. At the zoo, there are multiple layers because
people usually stick hands in the cage, this is to ensure the maximum amount of control.

Defenses
• Consent →
• Trespass
• Illegality (Ex Turpi Causa)
• Deliberate Act of a Stranger and Act of God

Defendant is liable if he knew about the danger before

▪ Guy who jumps in with the Bengal Tigers
▪ Ohio Animal Massacre: Terry Thompson had a bad day and wanted to commit suicide but
didn’t want his animals enclosed when he kills himself, so he let all of his exotic animals
loose then kills himself → This is definitely a scienter action
▪ African Lion Safari: Guy and his girlfriend go to African lion safari and it’s in dispute
whether they opened their window. When their window is open, the lion gets his claw in, gets
inside and mauls both individuals. He steps out to help her, but another lion gets him. They
both lived but have serious injuries. The court held African Lion Safari strictly liable because
 they found that the animals were out of control despite the humans being caged.
▪ They were looking at control and assumption of risk. Neither victims had to sign
a waiver or assumed the risk of being attacked by a tiger . When you got to the
consent issue, the discussion fell on whether the windows were down. This
would have been a very different case if they can establish that they had meet and
feeding the animals from their window and the park tried making that argument,
but the park couldn’t prove this. Forensic evidence of the way the tiger clawed
shows window was open.

Newfoundland Dog Act, R.S.N. 1990, c. D-26, s.8. Liability of owner (Section 8)
(1) The owner of a dog is liable for damages or injury done by it to a person or livestock or goods or
property.
(2) It shall not be necessary for the plaintiff in an action taken in respect of damage or injury done by a
dog to show a previous mischievous propensity in that dog or the owner's knowledge of that previous
propensity or to show that the damage or injury was attributable to neglect on the part of the owner of the
dog.

Manitoba Animal Liability Act, S.M. 1998, c. 8.

2(1) Subject to subsection (3), the owner of an animal is liable for damages resulting from harm that the
animal causes to a person or to property, but in an action in the Court of Queen's Bench to recover
damages under this section, the court shall reduce the damages awarded in proportion to the degree, if
any, to which the fault or negligence of the plaintiff caused or contributed to the harm.
2(2) Except as provided in subsection (3), liability under this section does not depend upon the owner's
knowledge of any propensity of the animal or upon any fault or negligence by the owner. 5

Ontario Dog Owner’s Liability Act

Liability of owner
2(1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person
or domestic animal. R.S.O. 1990, c. D.16, s. 2 (1).
Where more than one owner
(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section.
R.S.O. 1990, c. D.16, s. 2 (2).
Extent of liability
(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or
negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the
degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.
R.S.O. 1990, c. D.16, s. 2 (3).
Contribution by person at fault
(4) An owner who is liable to pay damages under this section is entitled to recover contribution and
indemnity from any other person in proportion to the degree to which the other person’s fault or
negligence caused or contributed to the damages. R.S.O. 1990, c. D.16, s. 2 (4).

5
36 States + DC have strict liability for dog bites or other personal injury done by dogs
- MCL 287.351 Person bitten by dog; liability of owner.
Sec. 1. (1) If a dog bites a person, without provocation while the person is on public property, or
lawfully on private property, including the property of the owner of the dog, the owner of the dog
shall be liable for any damages suffered by the person bitten, regardless of the former viciousness
of the dog or the owner’s knowledge of such viciousness.
INTENTIONAL TORTS AGAINST PROPERTY

TRESPASS TO LAND PROVIDES A REMEDY FOR THE DIRECT, INTENTIONAL (OR

NEGLIGENT), AND PHYSICAL INTERFERENCE WITH THE LAND IN THE POSSESSION
OF THE PLAINTIFF. (It is actionable without proof of damage).

Quare clausum fregit: "Wherefore he broke the close" → based on a concept of break and enter into a
plantiff’s land. That species of the action of trespass which has for its object the recovery of damages for
an unlawful entry upon another's land is termed "trespass quare clausum fregit" "breaking a close" being
the technical expression for an unlawful entry upon land. The language of the declaration in this form of
action is "that the defendant with force and arms, broke and entered the close" of the plaintiff.
• 1) It is a trespass to enter personally onto land in possession of the plaintiff without permission
• 2) It is trespass to place objects on the plaintiff’s property
o Cause of action renews every day until that object is removed (Parking your car on
someone’s driveway → Continuing Trespass)
• 3) A trespass may arise when the possessor revoked a visitor’s permission or license to be on the
property

The formulation of trespass to land as a direct physical interference with land in the possession of the
plaintiff allows the tort to protect a number of diverse interests.
• Protects the possessor’s interest in freedom of land use
• Plays a compensatory and deterrent role when an intruder damages land or destroys premises
• Trespass to land plays an important role in the protection of privacy interests
• Trespass to land is adjunct of the law of real property and plays a role in determining competing
land claims and the settlement of boundary disputes
-Trespass includes a reasonable airspace so you can enjoy your rights to the surface
- If you crash your car into someone’s land, it’ll be trespass depending on how long you keep your car on
their lot

1. The intrusion to the land must be direct

a. Mann v. Saulnier (NB 1959): Structure intruded on the plaintiff’s airspace. The court held
that there was no liability in trespass to the land because the intrusion was not direct.
b. Damage caused by indirect interference may be actionable as a nuisance
2. The defendant’s interference with the land must be intentional or negligent. The burden of proof
is on the defendant. The plaintiff must only prove a direct interference
a. It is not necessary to show that the defendant intended to do a wrongful act against the
plaintiff possessor
b. Mistake of fact is not a defence
i. Basely v. Clarkson (1681): The defendant was held liable in trespass to land for
innocently mowing the plaintiff’s grass on the belief that it was his own
3. The defendant’s action with the land must be physical

An owner who is out of possession but who has a right to immediate possession may have a number of
remedies:
• The owner may, on strength of his title bring an action for recovery of land
• If the owner can make a peaceable entry, do so and requires that they leave. If there is
noncompliance, he may take steps to remove him
o When a person with a right to immediate possession enters the land and takes possession,
he is deemed under the doctrine of trespass by relation to have been in possession since
the right to immediate possession arose.
Action for mense profits (damages suffered during

Torts Review Class

- 1-hour closed book exam

- 40 M/C → General questions and fact patterns
- Required to choose the best answer
- Unless otherwise states, Ontario law applies
- 20% of our total Torts grade
- Know Latin phrases
- Ex Turpi Causa on Oritut Actio
- Volenti Non-fit injuria
- Respondeat superior
- Res ipsa loquitor
- Farae naturae → known to be dangerous
- Mansuetae naturae → presumed to be gentle creatures, but if you know they have that
propensity then you need to take care
- Quare Clasum Fregit
- State non decisis
- Know the current state of the law (general understanding of cases in PowerPoint), no facts, just tests

- If you’re not an employee then respondeat superior doesn’t work because that speaks to the
employee/employer relationship
- Take the questions as they are and think of the Judge’s ruling
- Think of terms ‘obviously,’ etc…to determine if it’ll be the right answer

- Anns test: Neighbor relationship? If yes, are there policy considerations to negate, limit, the scope of the
duty
- Don’t worry about ‘directness’ in Canada with respect to battery
- Sudden emergency doctrine
-