Tort CAN – Olszynski Fall 2018

Introduction to Torts _______________________________________________________________________ 2

A. INTRODUCTION _______________________________________________________________________ 2
B. OBJECTIVES OF TORT LAW ______________________________________________________________ 3
Evaniuk v. 79846 Manitoba Ltd, Man QB (1990) ______________________________________________________________ 3

Negligence _______________________________________________________________________________ 3
A. INTRODUCTION TO NEGLIGENCE _________________________________________________________ 3
B. STANDARD OF CARE ___________________________________________________________________ 4
1. Unreasonable Risk _______________________________________________________________________ 4
Bolton v. Stone, HL (1951) _______________________________________________________________________________ 4
Wagon Mound (No 2), PC (1966) __________________________________________________________________________ 4
2. The Reasonable Person ___________________________________________________________________ 5
Vaughan v. Menlove, Common Pleas (1837) _________________________________________________________________ 5
Blyth v. Birmingham Water Works, Exchequer (1856) __________________________________________________________ 5

3. Custom ________________________________________________________________________________ 5
Waldick v. Malcolm, SCC (1991) ___________________________________________________________________________ 5

4. Statutory Standards ______________________________________________________________________ 6

R v. Saskatchewan Wheat Pool, SCC (1983) __________________________________________________________________ 6
Gorris v. Scott, Exchequer (1874) __________________________________________________________________________ 6
Ryan v. Victoria (City), SCC (1999) _________________________________________________________________________ 6
5. Particular Cases _________________________________________________________________________ 7
I. The Young _________________________________________________________________________________________ 7
Heisler v. Moke, Ont. High Court (1972) ____________________________________________________________________ 7
II. Mental and Physical Disability _________________________________________________________________________ 7
Fiala v. Cechmanek, ABCA (2001) __________________________________________________________________________ 7
III. Professional Negligence ______________________________________________________________________________ 8
Challand v. Bell, ABSC (1959) _____________________________________________________________________________ 8
Brenner v. Gregory, Ont. HC (1973) ________________________________________________________________________ 8
IV. Emergency _________________________________________________________________________________________ 9
Emergency Medical Aid Act, 2000 _________________________________________________________________________ 9

C. DAMAGES ______________________________________________________________________________ 9
Saadati v. Moorhead, SCC (2017) __________________________________________________________________________ 9

D. CAUSATION ___________________________________________________________________________ 10
1. Basic Approaches _________________________________________________________________________ 10
Kauffman v. TTC, Ont. CA (1959) _________________________________________________________________________ 10
Snell v. Farrell, SCC (1990) ______________________________________________________________________________ 10
Cook v. Lewis, SCC (1951) _______________________________________________________________________________ 11
Clements v. Clements, SCC (2012) ________________________________________________________________________ 11
Fairchild v. Glenhaven Funeral Services Ltd, HL (2002) ________________________________________________________ 11

2. Medical Disclosure and Causation ____________________________________________________________ 12

Reibl v. Hughes, SCC (1980) _____________________________________________________________________________ 12

E. DUTY OF CARE _______________________________________________________________________ 12

1. Duty Generally _________________________________________________________________________ 13
Donoghue v. Stevenson, HL (1932) ________________________________________________________________________ 13
Cooper v. Hobart, SCC (2001) ____________________________________________________________________________ 13
Hill v. Hamilton-Wentworth Police Services Board, SCC (2007) __________________________________________________ 13
R v. Imperial Tobacco Canada Ltd., SCC (2011) ______________________________________________________________ 14

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 2. Unforeseeable Plaintiff or Policy? _________________________________________________________ 14
Hay (Bourhill) v. Young, HL (1943) ________________________________________________________________________ 14
Dobson v. Dobson, SCC (1999) ___________________________________________________________________________ 14

3. Failure to Act __________________________________________________________________________ 15

I. Non-Feasance and Misfeasance _______________________________________________________________________ 15
“The Holy Bible” ______________________________________________________________________________________ 15
Horsley et al v. MacLaren, SCC (1972) _____________________________________________________________________ 15
Relationships Requiring Rescue __________________________________________________________________________ 15
II. Relationships of Economic Benefit_____________________________________________________________________ 16
Jordan House Ltd v. Menow, SCC (1974) ___________________________________________________________________ 16
III. Relationship of Control and Supervision ________________________________________________________________ 16
IV. Creation of Danger _________________________________________________________________________________ 16
Oke v. Weide Transport Ltd, Man CA (1963) ________________________________________________________________ 16
V. Reliance Relationships ______________________________________________________________________________ 17
Zelenko v. Gimbel Bros., New York SC (1935) _______________________________________________________________ 17
VI. Statutory Duties ___________________________________________________________________________________ 17
O’Rourke v. Schacht, SCC (1973)__________________________________________________________________________ 17
VII. Categories or Principles? __________________________________________________________________________ 17
Childs v. Desormeaux, SCC (2006) ________________________________________________________________________ 17
Rankin (Rankin’s Garage & Sales) v. J.J., SCC (2018) __________________________________________________________ 18

F. TORT LIABILITY OF PUBLIC AUTHORITIES __________________________________________________ 18

Proceedings Against the Crown __________________________________________________________________________ 18
Negligence Liability of Public Authorities ___________________________________________________________________ 19
Cooper v. Hobart (SCC) _________________________________________________________________________________ 19
Fullowka v. Pinkerton’s of Canada Ltd (SCC) ________________________________________________________________ 19
Taylor v. Canada (ON CA) _______________________________________________________________________________ 20
R v. Imperial Tobacco (SCC) _____________________________________________________________________________ 20
Ernst v. EnCana Corporation, 2013 ABQB 537 _______________________________________________________________ 21
Ernst v. Alberta (ERCB), 2014 ABCA 285 ____________________________________________________________________ 21
Ernst v EnCana Corporation, 2014 ABQB 672________________________________________________________________ 21

Introduction to Torts
A. INTRODUCTION
• Tort Law in one word is reasonableness; is private/civil law offences commit between private citizens
o Main function is to provide compensation for wrongdoings or harm done to a victim
o Generally, comes from caselaw/common law but there is some legislation as well
• Applies to everyone in Canada, everyone owes a duty of care at some point
• For tort law to be productive, the defendants must be worth suing
o There are 3 types of people to sue: insured or self-insured defendants, defendant with means
o If the perpetrator is not worth suing them self, need to look to who else is liable
• Duties imposed by tort law are:
o Dynamic – constantly evolving in response to new circumstances
o Heavily laden with policy – ubiquitous reliance on “reasonableness”, many tests used
o Judge made – who are not elected, rather they are appointed
• Three main differences from criminal law:
o Focus: criminal punish the accused for violation of criminal code, tort compensation for victim
o Burden of proof: criminal beyond reasonable doubt, tort balance of probabilities (50+1%)
o Charges: criminal brought by the state prosecution, tort brought by private citizens

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B. OBJECTIVES OF TORT LAW
Moralistic View: system of corrective justice; accountability for standard of behavior; code to live in society
• Rectify an imbalance between the litigants caused by the defendant
• Protects individual liberty by defining rights against wrongful interference of others
Instrumental View: need to look at tort law in the light of the objectives trying to be achieved
• Compensation: restore plaintiff position to before the tort, tailored to each loss, enhanced by liability insurance
• Punishment: acts as a sanction against the defendant, diminished by liability insurance
• Deterrence: influence conduct of citizens away from potentially harmful activities
o Specific deterrence: damages to be paid by the defendant deters them from doing the behavior again
o General deterrence: the general threat of tort litigation is enough to discourage harmful behaviors
o Market deterrence: encourages producer and consumers to respond in ways to reduce risk of accident
• Psychologic: tort law provides a non-violent way for victims to seek retribution
• Education: general and specific roles
o General: important for compliance with reasonable standards of conduct in the interest of safety
o Specific: occasionally there is cases that apply to a small group or a novel situation that may be publicised
in relevant publications that is accepted as common practices

Evaniuk v. 79846 Manitoba Ltd, Man QB (1990)

FACTS: Evaniuk in the defendant’s bar, a woman threw a drink at Evaniuk; when she got up the two door men forcefully
took her by the wrists and removed her from the bar; was literally thrown out and was injured
ISSUE: Is the employer vicariously liable for the harm caused by the bouncers? YES
RULE: Closely Connected Test = employer is vicariously liable, EXEMPLARY torts case
ANALYSIS: Needs to satisfy the "closely connected test" to be found vicariously liable
• “The master is liable for the actions of contractors even for acts not authorized, as long as they are closely
connected to the actions that are authorized” - regarded as improper ways of completing them
• Argued that the bouncers were allowed to escort but not eject people out of the bar, therefore were outside of
their duties and the employer would not be liable
• In this case the doormen's actions immediately prior to the ejection was within their scope, so the following
actions were found to be closely connected
• Why is this exemplary? Precedence setting, capacity to bear loss, prevention and punishment, damage, etc.

Negligence
A. INTRODUCTION TO NEGLIGENCE
Elements of Negligence:
(1) Negligent act – Carelessness, lack of duty care, breach of stand of care
(2) Damage – Harm
(3) Causation – ‘But for the breach' the harm would not have occurred, standard of proof (50+1%)
Controlling Devices:
(1) Duty of care – Not liable to everyone, only those who you have a duty of care to protect, reasonable foreseeability
(1) Remoteness of damage – Not all kinds of harm are reasonably foreseeable, somethings things are too fantastical
Defences:
(1) Contributory negligence – The person harmed contributed to them getting harm, spreading loss, partial defence
(2) Voluntary assumption of risk – The harmed person waived right, took on physical and legal risks, total defence
(3) Legality – Person recovering for harm is benefitting from an unlawful act; i.e. gets injured while committing a crime
(4) Inevitable accident – There was no breach of duty, it was an accident

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B. STANDARD OF CARE
What a 'reasonable person' in similar circumstances 'would have done'
• Reasonable person = OBJECTIVE TEST
o Is a mythical person who is not too prudent but not reckless; is a little more careful than most people;
consciously makes decisions about consequences of actions
§ Not subjective, doesn’t look at any personal characteristics i.e. intelligence, etc.
§ Not a standard of perfection; or an average standard
• Would have done = reasonably foreseeable risk, steps taken to avoid such risks
o Risk = magnitude of harm x likelihood of harm (R = MP)
§ Higher the function MP the higher the R

Factors when applying the standard of care:

a) Foreseeable Risk
b) The Likelihood of Damage
c) The Seriousness of the Threatened Harm
d) The Cost of Preventive Measures
e) The Utility of the Defendant’s Conduct
f) Emergency Situations
g) Custom and Approved Practice
h) AND Post-Accident Precautions, Judicial Policy, Economic Analysis, The Equity of the Case, Hindsight Bias

1. Unreasonable Risk

Bolton v. Stone, HL (1951)

FACTS: Bolton is the Committee of a cricket club; a ball is hit on the pitch, goes past the field over a fence and hits Stone
who is walking on the adjacent street. It was found that a ball had been hit over the fence 6 times in 30year history of the
club, but no one was ever injured.
ISSUE: Was it reasonably foreseeable that injury could happen if a ball went over the fence? NO
RULE: Must GUARD AGAINST REASONABLE POSSIBILITIES, but not against fantastical possibilities
ANAYLSIS: Question to apply here, would a reasonable man consider the small possibility of a ball going over the fence, to
a fairly quite road, and hitting someone one the road? And would they have taken steps to prevent it?
• The probability that a ball goes over the fence, and also hits someone is very low [likelihood, seriousness of harm]
• The only way to fully mitigate the risk would be to shut down the cricket pitch all together [cost of preventative]
• The utility of cricket saved the suit, ruled it was not a reasonably foreseeable risk [social utility]

Wagon Mound (No 2), PC (1966)

FACTS: The Wagon Mound ship leaked oil into the harbour while some welders were working on a ship nearby; the sparks
from the welders caused the leaked oil to ignite destroying three ships
ISSUE: Was the fire was reasonably foreseeable to the extent liability attaches? YES
RULE: REASONABLE FORESEEABILITY, person will be held negligent if they do not take steps to
eliminate risks that are known or ought to be known risks
ANAYLSIS:
• If a party did nothing to prevent the injury, he is liable for the foreseeable consequences of his actions
• You should not be dumping oil into the water (example of utility factor– there’s no utility in dumping oil)
• This case is the RULE CASE for reasonable foreseeability

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2. The Reasonable Person

Vaughan v. Menlove, Common Pleas (1837)

FACTS: P was the owner of two cottages, D owned neighbouring land with haystacks on it; the haystacks spontaneously
ignited and the fire spread destroying the cottages; D had been warned of the peril for weeks
ISSUE: Was the fire caused by gross negligence on the part of the defendant, by not acting with such reasonable caution as
a prudent man would have exercised under such circumstances? YES
RULE: Negligence is judged OBJECTIVELY based on the actions of the REASONABLY PERSON
ANAYLSIS:
• Defendant claimed he was not smart enough to understand the risk, judge did not allow this as a defence
• Instead of saying that the liability for negligence should be co-extensive with the judgment of each individual,
which would be as “variable as the length of the foot of each individual”, we ought rather to adhere to the rule
which requires all cases a regard to caution such as a man of ordinary prudence would observe
• This case is the RULE CASE for the reasonable person

Blyth v. Birmingham Water Works, Exchequer (1856)

FACTS: D installed a fire-plug made according to regulations; due to a severe frost damage was caused to the fire-plug,
resulting in the P’s premises being flooded; fire-plug had worked by past 25 years
ISSUE: Were the defendants guilty of negligence? NO
RULE: Taking reasonable care to prevent damage from occurring = meeting the standard of care
ANAYLSIS:
• The defendants had protected against such frost as experience would have led them to, therefore acting prudently
to protect against damage, and are not guilty of negligence
• The circumstances that led to damage constituted a contingency which no reasonable man would foresee

3. Custom
• Customs can be important to give background knowledge to the court - we look to our peer group to tell
us what is reasonable in certain circumstances i.e. children using machinery in a rural setting vs. urban

Waldick v. Malcolm, SCC (1991)

FACTS: Waldick fell on the icy parking area of the Malcolm's’ farmhouse; the parking area had not been salted or sanded
and claimed that few people in the region did so
ISSUE: Do customary practices extinguish duty of care owed for reasonably foreseeable risks? NO
RULE: Customary practices which are unreasonable in themselves do not extinguish duty of care
ANAYLSIS:
• The party who relies on compliance with custom has the ONUS OF PROVING that the custom is in effect; in this
case, there is nothing that would prove this as custom
• Held no amount of general community compliance will render negligence conduct ‘reasonable…in all but the
circumstances’ à Customs cannot render negligent conduct reasonable or oust duty of care

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4. Statutory Standards
• There has been an increase in legislative safety regulation and controls - is largely independent of the tort system
o Normally describes minimum safety standards and penalties for non-compliance
• Why we should integrate the statutory breach into negligence law:
o Allows courts to support and reinforce the accident prevention initiatives of government
o Offers the courts concrete standards of conduct which have often been set with the assistance of experts
o Permits courts to add the deterrent clout of tort law to enhance the effectiveness of legislation
• The weight given to statutory compliance depends upon the kind of case before the court
o More weight is given to it where the legislation prescribes specific statutory standards
o Less weight will be ascribed where legislation prescribes general and discretionary standards

R v. Saskatchewan Wheat Pool, SCC (1983)

FACTS: The Saskatchewan Wheat Pool delivered a shipment of infested wheat from one of its terminal elevators to the
Canadian Wheat Board which violated the Canada Grain Act
ISSUE: Can breaching statutory standards give rise to a civil action for the harm caused? NO
RULE: A breach of statutory standard can be EVIDENCE OF NEGLIGENCE, but is not determinate
ANALYSIS:
• Can be used to inform the court’s assessment the same way customs do
• Where there is no duty of care at common law, breach of penal legislation should not affect civil liability unless the
statute provides for it i.e. Fishery Act has a civil liability provision
• In this case the Board says the Act imposes liability on the Pool and they are liable even if not at fault, and all that
needs to be proved is that the statute was not complied with
• The Canada Grain Act does not have any civil liability provisions for damages for receipt of infested grain
• The discharge of infested grain does breach the Grain Act but does not give rise to independent tort action

Gorris v. Scott, Exchequer (1874)

FACTS: Shipowner was contracted to carry sheep, sheep were washed overboard during a storm; suing for negligence in
not following Contagious Diseases Act - which had the stated purpose of sanitary standards
ISSUE: Was the loss caused by the neglect of the standards prescribed by the Act? NO
RULE: Not liable for a statutory breach when the damage sought isn’t a part of the statutes purpose
ANALYSIS:
• A claim bought under a specific statute must be directly related to the purpose behind the statute
• In this case the Act in question had the purpose of preventing transmission of disease during the transportation of
livestock, which has nothing to do with protecting against losses due to the perils of the sea

Ryan v. Victoria (City), SCC (1999)

FACTS: Ryan was injured when he was thrown from his motor bike while crossing a railroad track and his front tire of got
stuck; trial judge held the railway liable for negligence
ISSUE: Was the Railway negligent despite fact that they met statutory obligations? YES
RULE: Compliance to statutory standards is not automatic compliance with civil standards of care
ANALYSIS: McKay/Barclay Rule used to exempt railways from liability to help economy; Now, there is less utility to
protecting railways over the public's safety therefore the rule should no longer apply
• Statutory standards do not extinguish civil duty to protect from reasonable harms
• Just because something is regulated does not mean they aren't subject to common law rules
• The railway company does not dispute theories of negligence, but denies liability as they followed safety
regulations and that discharge of compliance to regulation is the only standard of care owed
• SCC held compliance of the statutory standard is evidence of reasonableness but is not determinate

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5. Particular Cases
• Exceptions to the "Reasonable Person" standard
o Lower standard is applied when individual is not capable of performing the normal standard
o Higher standard is applied when individuals is involved in a profession with elevated skills

I. The Young
o Children do not have the same knowledge or experience as adults to foresee danger and act accordingly
o An exception to the exception is in cases of children performing adult activities – Delwo v. Pearson
§ Can't assume that it is a child; therefore, hold everyone doing these activities to same standard
o Some difficulty in determining what is considered to be an adult activity
§ i.e. Operation of motorized vehicle (YES) – Ryan v. Hickson, McErlean v. Sarel
§ i.e. Teen dropping another drunk teen off at home (NO) – Nespolon v. Alford
§ i.e. Golf (YES) – Pope v. RGC Management
o Alternative could be liability on the parents - in Canada no vicarious liability, but can have direct liability for
'careless' supervising the children – Ryan v. Hickson
§ i.e. Parental Responsibility Act, parents must prove they were not negligent if their child is
§ i.e. Parents can be liable to their own children – Teno v. Arnold (1976)

Heisler v. Moke, Ont. High Court (1972)

FACTS: 9-year-old boy, told not to jump because it could hurt his leg, but injured leg in pushing a tractor clutch
ISSUE: Was there any negligence on the part of the child causing injury? NO
RULE: For children must apply the subjective/objective 'reasonable' person test
ANALYSIS: Test for adults is clearly object test of the 'reasonable person'; Children however require a different test
• Two-part TEST: (subjective/objective)
o (1) Threshold: are they capable of being negligent (in plain terms, can they understand cause and effect, and
act carelessly) - purely subjective, usually around age 6-9 but no hard line, IF YES…
o (2) McEllistrum v. Etches (1956): standard of care owed is that of a child similar in age, intelligence and
experience as the defendant - objective/subjective comparison
• In this case the child satisfied part 1 but not part 2; could not have been reasonably expected to understand the
consequences of his actions - thus no negligence/liability found

II. Mental and Physical Disability

o Mental: mentally incapacitated individuals should be free of liability - does not seem fair to punish those not
able of discharging reasonable care - Canada's approach is in favor of the disabled
§ Usually separated into two categories of cases
(1) Lack of volition - cannot control body
§ i.e. Stokes v. Carlson (sleeping) & Slattery v. Haley (sudden illness à unconscious)
(2) Cannot conform to standard of care due to mental illness
§ i.e. Buckley v. Smith Transportation & Fiala v. Cechmanek
o Physical: law imposes a standard compatible with disability i.e. blind aren't required to see, deaf not to hear

Fiala v. Cechmanek, ABCA (2001)

FACTS: MacDonald had a manic episode of Bipolar disorder and during this episode broke into Cechmanek's car and
strangled her, she stepped on the gas pedal involuntarily hitting the Fiala's car in front of her, injuring Fiala and daughter
ISSUE: Is there a cause for action in regard to MacDonald’s actions? NO
RULE: If a person is unable to understand or appreciate their actions, they cannot discharge a duty of
care – and will not be held to the reasonable person standard

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ANALYSIS: Two Competing Views
• The standard Objective test
o Main purpose of tort law is victim compensation
o Practical difficulties in determining the extent of mental disability
o Lower standard might result in people avoiding mentally ill for fear of harm without compensation
o Lower standard might erode the objective standard to make it useless – where to draw line
• The court favored the Subjective test
o Negligence Is about wrongdoing, not compensation
o Significant advancements in the study of mental illness means more accurate identification now
o If we are going to make a change, then it seems more appropriate to impose liability on caregivers directly
o Concerns of erosion of objective test will encourage the legitimization of physical illness while reinforcing
negative stereotypes about mental illness
• Buckley TEST: in order to be relieved of tort liability when a defendant is afflicted suddenly and without warning
with a mental illness, that defendant must show either of the following on a balance of probabilities:
(1) As a result of his or her mental illness, the defendant had no capacity to understand or appreciate the duty of
care owed at the relevant time; or
(2) As a result of mental illness, the defendant was unable to discharge duty of care as he had no meaningful
control over his actions at the time the relevant conduct fell below the objective standard of care

III. Professional Negligence

Challand v. Bell, ABSC (1959)

FACTS: Doctor casts an arm after a break, circulation was compromised, and arm ended up needing to be amputated
ISSUE: Did the doctor negligently breach standard of care? NO
RULE: Standard care applied to professionals is that of a reasonable professional of same type
ANALYSIS:
• Standard of care – expected to apply degree of care which normally skilled members of his profession may
reasonably be expected to exercise
o Beginners are held to the same standard as those reasonable skilled and proficient in their occupation
o Although all held to same standard, doctors must be aware of their limitations and not act outside of them
• SCC Test: (1) the doctor undertakes that he possesses the skill, knowledge and judgement of the average (2) in
judging that average, regard must be had to the special group to which they belong (3) if the decision was the
result of exercising that average standard there is no liability for an error in judgement
• The doctor's actions in this case were found to consistent with the standard of care owed by doctors of his 'special
group' (rural GP), and a specialist witness confirmed he would treat in the same manner

Brenner v. Gregory, Ont. HC (1973)

FACTS: Brenner bought 4 lots retained Gregory to search title and close the transactions, which he did; but one of the lots,
needed a survey to confirm it and none was done; Brenner sued Gregory
ISSUE: Was the lawyer negligent in not obtaining a survey? NO
RULE: Standard care applied to professionals is that of a reasonable professional of same type
ANALYSIS:
• Expert witness stated in this circumstance a reasonably diligent lawyer acting for a purchaser would not be expected
to secure a survey or to advice client to do so - failure to do so would not be negligent
• Duty of care is discharged when the lawyer acts in accordance with the general and approved practice followed by
lawyers, unless such practice is inconsistent with prudent precautions against a known risk, as where particular
instructions are given which the solicitor fails to carry out

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IV. Emergency

Emergency Medical Aid Act, 2000

Protection from action:
If, in respect of a person who is ill, injured or unconscious as the result of an accident or other emergency,
(a) a physician, registered health discipline member, or registered nurse voluntarily and without expectation of
compensation or reward renders emergency medical services or first aid assistance and the services or assistance are
not rendered at a hospital or other place having adequate medical facilities and equipment, or
(b) a person other than a person mentioned in clause (a) voluntarily renders emergency first aid assistance and that
assistance is rendered at the immediate scene of the accident or emergency,
the physician, registered health discipline member, registered nurse or other person is not liable for damages for injuries to
or the death of that person alleged to have been caused by an act or omission on his or her part in rendering the medical
services or first aid assistance, unless it is established that the injuries or death were caused by gross negligence

C. DAMAGES
Introduction:
• There can be no liability for negligence unless some damage has been suffered as a result of the defendant’s act
• Once harm is established à What damages (amount of $) is the defendant liable for?
• Damages divided into - derivative loses
o Pecuniary - financial losses (i.e. income, expenses, etc.), larger portion of damages
o Non-pecuniary losses - non-tangible harm (i.e. pain and suffering, loss of enjoyment), smaller portion
• Can also claim on non-derivative losses - i.e. pure economic losses
Limitation Periods:
• Part of law's goals is to provide certainty - achieved by limitation periods
• Usually 2 years - to start the process
o The date of beginning of limitation period - depends on Limitation Act of jurisdiction, and discoverability rule
o "A cause of action arises for purpose of a limitation period when the material facts on which it is based have
been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”

Saadati v. Moorhead, SCC (2017)

FACTS: Claiming mental injury after accident (based on friend/family testimony); sued for negligence and was awarded
$100,000 at trial; decision reversed at appeal because thought that mental injuries requires a claimant to prove by expert
medical opinion a 'recognizable psychiatric illness'
ISSUE: What do you need to do to show mental harm? Different than physical injuries? NO
RULE: Treat mental and physical injuries the same - same level of evidence required
ANALYSIS:
• SCC held that you no don’t need an expert diagnosis, but it would be the highest level/strongest type of evidence
o If we were to hold that you need a diagnosis to recover - then the ability to decide these cases is in the hands
of the psychiatrists not the court (Justice Browne did not like this)
o i.e. the DSM - points out there are inconsistencies and issues with this as well
o SCC says expert opinions are helpful, but the ultimate call is left to the judges to decide
• Q of if we don’t need a medical expert how do you stop false cases?
o There are mechanisms in tort law that deal with this already i.e. remoteness and relationships

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D. CAUSATION
1. Basic Approaches
"BUT FOR" Test: but for the defendant's actions would the harm have occurred? - if answer is NO there is liability
• (1) Identify the HARM
• (2) Isolate the breach in standard of care (must have already done the SoC analysis)
• (3) Adjust facts to satisfy SoC – i.e. Imagine breach had not occurred
• (4) Would harm have occurred? (on a balance of probabilities - plaintiff's burden to prove)
• (5) Answer Q in 4
o Marek v. Southern Enterprises Inc. à fireworks in a theater = BUT FOR satisfied
o East Texas Theaters v. Rutledge à bottles thrown in theater = BUT FOR not satisfied

Alternative tests:
• MATERIAL CONTRIBUTION TO RISK TEST (has never been successfully argued in Canada)
o Only used when (1) proving the But For test is IMPOSSIBLE, (2) multiple tortfeasors involved
o i.e. two fires lit simultaneously by two different people lead to a barn burning down, each fire starter
could point to other as the cause therefore defeating the power to prove it was either
• ALTERNATIVE LIABILITY
o When a small group of people were negligent causing the harm, but the plaintiff cannot establish which
person it was; If all the negligent persons are joined as defendants the onus of causation is reversed
• JOINT TORTFEASFORS – number of people responsible for one act, all are held jointly and severally liable
• MARKET SHARE LIABILITY – USA concept applied to product liability litigation, liability % = market share %
• LOSS OF CHANCE – often arises in medical malpractice cases = loss of chance for full recovery

Kauffman v. TTC, Ont. CA (1959)

FACTS: Plaintiff was injured when a series of stumbling people lead to her also falling on an escalator
ISSUE: Would a better handrail /or/ an attendant have prevented the accident? NO
RULE: Must be able to satisfy the BUT FOR test in order to prove causation and impose liability
ANALYSIS: BUT FOR analysis
• (1) injury; (2) insufficient hand rails and no attendant; (3) better railings /or/ attendant present (should do two
separate analysis); (4) would harm happen? (5) not able to determine
• This case failed because not able to prove on a balance of probabilities that injuries would not have happened BUT
FOR the defendant’s actions

Snell v. Farrell, SCC (1990)

FACTS: Plaintiff became blind in one eye after a cataract surgery
• Trial judge applied McGee (augmented risk test) to shift the onus to D to prove there was not negligence
ISSUE: Whether the traditional approach is no longer satisfactory in cases of malpractice (when P cannot prove C)? NO
RULE: Need a ROBUST and PRAGMATIC application of But For test; Inference can establish ‘but for’
ANALYSIS:
• There was a breach because the standard of care would be to stop surgery
• Applying McGee is a shift away from the traditional principles of tort law
• SCC says - we do not need to prove causation on a scientific basis, only a balance of probabilities
o Also, not going to use the augmented risk test (reverse onus) because this is against traditional tort principles
o Need to apply but-for test in a ROBUST AND PRAGMATIC WAY (common sense - rigorous)
• The legal or ultimate burden remains with the plaintiff but the absence of evidence to the contrary by the
defendant may lead to an inference of causation

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Cook v. Lewis, SCC (1951)
FACTS: Lewis injured by gun fire by Cook and second man in separate hunting party, Both defendants fired at the same
time, in different directions, and plaintiff was injured as a result
ISSUE: Did the trial judge err in the charge to jury in regard to the onus of proof of negligence? YES
RULE: Alternative liability can be applied to multiple tortfeasors to reverse onus of causation**
ANALYSIS:
• “Both defendants are wrongdoers, both negligent towards the plaintiff; they brought a situation that negligence by
one of them injured the plaintiff, hence it should rest with each of them to absolve himself if he can - plaintiff at
disadvantage as each defendant could point to the other and escape liability”
• In this case, both shot negligently in the direction of the plaintiff, both should be liable
** RULE NOT USED FROM THIS CASE – Clements disallowed reverse onus, and showed that there was not an impossibility of
proving BUT FOR through use of ballistics

Clements v. Clements, SCC (2012)

FACTS: Plaintiff was injured after a motor bike crash - the bike was driven by husband, it was wet weather, bike was
overloaded, nail punctured tire, speed up and tired deflated à crash
ISSUE: Did Mr. Clements breach standard of care and if so, was it causal to Mrs. Clements injury? YES – NO?
RULE: Almost always BUT FOR – very small chance of material contribution to risk
• Need a robust common-sense application of BUT FOR test
• No possibility of the reverse onus test ever
ANALYSIS:
• SCC identifies what the material contributions test is and when it can apply
o (1) impossibility of BUT FOR causation, (2) multiple tortfeasors involved
o GLOBAL but for causation is satisfied but cannot determine which defendant is the true cause
o Used for corrective justice function of tort law by not allowing defendants to escape liability by pointing finger
• In this case: Without the breach would the incident have occurred?
o What it comes down to is that no one can say for sure; therefore, no causation
o Material contribution of risk test cannot be applied – b/c did not meet the precondition of multiple tortfeasors

Fairchild v. Glenhaven Funeral Services Ltd, HL (2002)

FACTS: Employee of multiple funeral homes; inhaled asbestos and got mesothelioma; was definitely caused by breathing
in particles while at work, but impossible to say from which job the asbestos came from which caused the illness
ISSUE: Who is responsible for damages when a victim has suffered a legal wrong but cannot show which of several
possible candidates (all in breach of duty) is the culprit? ALL
RULE: Example of when the Material Contribution to Risk test can be successfully applied
ANALYSIS:
• If the P’s argument is upheld there is risk that an employer will be held liable for damage that they did not cause
o It is unjust to impose liability where it has not been proven on a balance of probabilities
o But there is also strong policy argument to compensate those who have suffered grave harm
• The latter outweighs the former
• Conclusion - can recover against both employers because all of the other conditions are satisfied
o (1) There is an impossibility of proving But For test b/c each employer could point finger at other
o (2) There are multiple tortfeasors
• There must be good reason to depart from the ‘but-for’ test because of the potential policy implications

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2. Medical Disclosure and Causation

Reibl v. Hughes, SCC (1980)

FACTS: Reibl underwent surgery for the removal of an occlusion in the carotid artery
• Hughes, the surgeon, performed the surgery properly, however either during or immediately after the surgery the
plaintiff had a massive stroke that left him paralyzed
• Prior to the surgery the respondent did not inform the appellant specifically about the risk of stroke, BUT the
appellant had consented to the surgery
ISSUE: Was there was a failure to inform the patient of material risks? YES Was causation (but for) satisfied? YES
RULE: Causation in medical practice cases = modified objective test for negligence causation
ANALYSIS:
• Hopp v. Lepp - there must be disclosure of material risks, which along with the procedure must be consented to
o Material risks = risks that may be very unlikely but carry serious consequences in the event it does happen
o In this case the risk of stroke and paralysis is a MATERIAL RISK which was not disclosed
• Causation - how do you establish the breach with a result of the surgery going forward?
o Need to examine from the perspective of the patient à MODIFIED OBJECTIVE TEST
o What would a reasonable patient in the circumstances of the plaintiff have done if properly informed?
• In this case a reasonable patient would have declined surgery because the risks outweighed the results
• But for knowing all the risks, he would not have consented
• Findings do not support finding liability for battery because
o Battery is an intentional tort which requires a lack of consent to the operation itself
o Here, he consented to have the operation

Doctrine of Informed Consent to Medical Treatment:

• Duty of Care: Physician is under duty of care to both answer questions and volunteer information about the
patient's health and treatment options
• Standard of Care: Full disclosure standard; sufficient information must be provided to allows the reasonable person
in the particular circumstance of the patient to make a decision in their best interest - all material risks must be
disclosed
• Causation: Modified Objective Test
o First it must be shown that the harm was caused by the procedure to which he patient consented
o Second it must be proven that the patient would not have consented to the procedure if the defendant had
performed the duty to inform of all material risks of the treatment

E. DUTY OF CARE
• Duty of Care is a question of law which requires a judge to determine if the defendant is under a legal obligation
to exercise a reasonable care in favor of the plaintiff
• Plays a much more sophisticated role in negligence law, it is the primary instrument of control over
• Must decide if the case falls within recognized category of duty of care; if so, Prima Facie duty – If not, a NOVEL
case is then analyzed by…

Anns/Cooper Test:
(1) A – Foreseeability; B – Proximity
• Foreseeability à Only owed to those whom are reasonably foreseeable as being affected by failure to take care
• Proximity à requires a consideration of factual closeness and policy factors
o Factual proximity - focuses on the nature of the relationship between the defendant and plaintiff
o Policy considerations assist in determining if IT IS FAIR AND JUST for the defendant to owe a duty of care
(2) Residual Policy Factors
• Policy consideration also operate on the macro level - these operate to negate or limit a Prima Facie duty of care
on a larger political/societal level

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1. Duty Generally

Donoghue v. Stevenson, HL (1932)

FACTS: Snail in ginger beer, bought by a friend from a café, served in an opaque bottle
ISSUE: How can we impose liability in this situation, where is no duty of care owed?
RULE: NARROW – a manufacturer who makes a product that cannot be inspected prior to sale owes
a duty of care to the consume; BROAD – 'neighbour' principle and expansion of negligence law
ANALYSIS:
• This case was a trial - resulting from a preliminary motion to strike this action down
o Q was if the law would even recognize there was case here even if all the facts are true
o In the context of duty of care - if a case falls outside recognized categories of DoC there will likely be a
preliminary motion to strike based on no legal standing
Neighbor principle: Lord Denning
"The (moral) rule that you are to love your neighbour becomes in law; You must not injure your neighbour; ‘Who is
my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can
reasonable foresee would be likely to injure your neighbour. Who then, in law is my neighbour? Persons who are so
CLOSELY and DIRECTLY affected by my act that I OUGHT 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.”

Cooper v. Hobart, SCC (2001)

FACTS: Registrar of Mortgage Brokers suspended a registered mortgage broker’s license and issued a freeze order in
respect of its assets because funds provided by investors were allegedly used by the broker for unauthorized purposes
• Appellants asserted that the Registrar was aware of the violations earlier and should have acted more promptly
ISSUE: Was a duty of care owed by the Registrar to the Investors? NO
RULE: Anns/Cooper test – Recognized category? (1) Foreseeability (2) Proximity (3) Residual Policy
ANALYSIS: In this case there was no precedence = novel = Anns/Cooper analysis
1. (a) Foreseeability à it is foreseeable that the Plaintiff would suffer harm from Defendant’s actions
(b) Proximity à micro policy considerations (that arise out of party’s relationship that might negate the duty)
o Look at things like: close and direct, 'reliance, expectations, representations’
o Is not a so much a TEST it is more of a CONCLUSION
§ Is all influenced by, is it just and fair to impose a duty of care in this situation?
§ If you get through all of this, you establish a Prima Facie duty of care
2. Residual Policy Considerations
o Larger/broader questions that go outside relationship of parties
o Public/social consequences considerations
o Need to see if you can determine liability - i.e. indeterminant or not (can you tell who is liable to who?)
In this case; (1 a) YES it was foreseeable that there could be losses from improper regulation, (1 b) BUT registrar has a duty
to protect the public not the investors - therefore no proximity à NO duty of care established
• Went on to say if the first stage had been satisfied, it would fail in the second stage because; this would be
imposing an indeterminant duty of care of the registrar to all investors which would be problematic

Hill v. Hamilton-Wentworth Police Services Board, SCC (2007)

FACTS: Hill was charged with 10 counts of robbery and lots of dodgy evidence was used to justify arrest; brought a civil
action that included a claim in negligence against the police based on the conduct of their investigation
ISSUE: Can the police be held liable for their conduct during the course of an investigation? YES
RULE: Application of the Anns/Cooper Test; examined charter rights analysis in stage 1
ANALYSIS:
First step: it is there precedence for this category of case?
• NO - novel because no previous cases concerning this specific relationship i.e. police investigator and suspect

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 1. A: Foreseeability: YES - it is foreseeable that a poorly completed investigation would lead to harm
B: Proximity: YES - suspect was in close and direct relationship with the police investigators
o Especially because the suspect's liberty interest is at stake (charter consideration)
o Biggest factor is the physical proximity - in their custody
YES, duty of care found
2. Residual Policy Factors:
o These types of considerations must have real and apparent consequences à must be concrete reasoning
o In this case every argument brought by D is struck down for not being a concrete reason
§ i.e. Quasi-judicial nature of policing, discretion, confusion with standard of care for arrests, ‘chilling
effect’, flood of litigation, risk of guilty person unjustly recovering damages
Conclusion: there was DUTY OF CARE OWED but no breach in the standard of care based on the reasonable police
investigator in the circumstance and year that is happened

R v. Imperial Tobacco Canada Ltd., SCC (2011)

RULE: Changes from Cooper in the proximity analysis when dealing with public authorities
ANALYSIS:
Stage 1 - Proximity and Foreseeability
• A Prima Facie duty of care will be satisfied in these cases if there was a 'special relationship' between parties
(1) that the defendant ought to reasonably foresee that the plaintiff would rely on their representation
(2) reliance by the plaintiff would be reasonable in the circumstance of the case
• Complicating this is the role legislation plays in determining if a government owes a duty of care
• Two situations arise:
o Where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme
• The statute itself creates a private relationship of sufficient proximity giving rise to the prima facie duty
o Where duty is alleged to arise from interaction between the claimant/govt. and isn’t negated by statute
• Government through its conduct has entered into a special relationship with the plaintiff
• In this case there are two relationships to consider - Canada and the consumers, and Canada and tobacco companies
o Found to not owe a duty of care to consumers, but did owe to the tobacco companies

2. Unforeseeable Plaintiff or Policy?

Hay (Bourhill) v. Young, HL (1943)

FACTS: P did not see D’s (deceased) motorcycle hit a car – only saw blood on the road after; As a result, P claimed to have
sustained a wrenched back and her child was stillborn, which she attributed to shock and reaction to the event
ISSUE: Did the D have a duty of care to the P? NO
RULE: No duty of care is owed when it cannot be reasonably foreseen that act could cause damage
ANALYSIS:
• Duty of care test requires element of foreseeability
• The duty is not owed to the world at large
• It was not reasonably foreseeable that anyone that was placed as the plaintiff was could be affected in the manner in
which she was
** Farrugia case
• Court says - the DoC is owed to anyone in the neighborhood, the vicinity, of the accident at the crucial moment

Dobson v. Dobson, SCC (1999)

FACTS: Mother negligently drove a vehicle while pregnant, caused injuries that affected the baby when it was born
ISSUE: Whether to hold a mother liable to injuries to her unborn child by negligently driving car while pregnant? NO

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 RULE: A mother does not owe duty of care to her born alive child for negligent conduct prior to birth
ANALYSIS: Relevance à pre-dates Cooper, using the old Anns test still, only consider foreseeability and macro policy
• MAJORITY:
(1) Foreseeability - mother and child are bonded in union, foreseeable that unborn child could be injured
(2) Policy considerations - negate DoC to not limit bodily integrity, privacy and autonomy rights of women
o There are two categories that the court identifies and post Cooper they would be split up
• Micro - relationship between mother and child i.e. this would be bad for family
• Macro - bodily autonomy, and effect this would have on women's lives
• DISSENT:
o This is not a case about pre-natal injuries, it is about the post-natal injuries that are actionable
o The plaintiff was already under a duty of care to others while driving a vehicle - not able to just drive recklessly
o Why wouldn’t we recognize a DoC to the unborn child in this context as well
o If this was the accepted judgement - there would be a shift to make unborn children 'legal' persons that would
impose liability on the mother too much

3. Failure to Act
• There is a fundamental difference between causing harm by your conduct and failure to prevent harm
• Unless it is found that there was a positive duty to act there will be no liability even if harm done was foreseeable
and preventable by the defendant

I. Non-Feasance and Misfeasance

• Mis = did something wrong à therefore liability
• Non = didn’t do anything à therefore no liability
o There are exceptions that make liability in this category (special categories listed next section)

“The Holy Bible”

• "Love the Lord thy God with all thy heart and with thy soul and with all thy strength; and thy neighbor as thyself"
• Biblical passage that inspired the neighbor principle in Donoghue v. Stevenson
• There is a difference between the moral obligation to help others and the legal obligation to just not hurt

Horsley et al v. MacLaren, SCC (1972)

• After a man falls over board, the boat captain tries to help with rescue and a rescuer dies in the process
TRIAL COURT:
• Modern negligence law - there is no general duty to come to the rescue of a person who finds himself in peril from a
source unrelated to the defendant
COURT OF APPEAL:
• No principle is more deeply rooted in the common law then that there is no duty to take positive action in aid of
another no matter how helpless or perilous his position is
SUPREME COURT OF CANADA:
• There is no duty to incur a benefit to another, and no liability will attach in doing so unless situation is made worse
• i.e. being an instrument of harm vs. instrument of good

Relationships Requiring Rescue

There is no general common law duty to rescue, but there are certain recognized categories that do require a
duty to rescue/assist, they are set out by Professor Klar as;
(1) relationships of economic benefit
(2) relationships of control or supervision
(3) creation of dangerous situations

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 (4) reliance relationships
(5) statutory duties
II. Relationships of Economic Benefit

Jordan House Ltd v. Menow, SCC (1974)

FACTS: Menow had been drinking and became intoxicated, was ejected from the bar; got a ride part of the way home and
started walking the rest of the way down the highway; Was struck by Hosenberger’s vehicle
ISSUE: Does a hotel owner owe a duty of care to a customer? YES
RULE: In a relationship of economic benefit, the profit gained imposes a duty of care
ANALYSIS:
• In this case there was a SPECIAL relationship and it was an invitor-invitee relationship (economic benefit)
• This does not mean that every bar owes a duty to every patron, it is narrower than that
o "if the bar's only involvement was supplying drinks, could not attach civil liability"
o This is not only based on the economic relationship – based on being in establishment and ability/duty to
monitor his drinking also the knowledge of this intoxication/history
o Profit motive to sell more, but duty to not overserve balance
o Knowledge of intoxication = foreseeability, economic relationship = proximity
• There was a misfeasance that they provided too much alcohol
• The non-feasance was not providing a safe ride home - this duty is required because of the special relationship
DISSENT: Agrees about liability being imposed on the hotel but reason differs - thinks the liability comes from the
knowledge of his propensity to drink and serving him an amount of alcohol that rendered him unable to take care of himself

III. Relationship of Control and Supervision

• There are several relationships of control or supervision which require dominant parties to take affirmative steps to
either prevent injury to or assist others in vulnerable positions
• It is only fair that, if a person’s freedom of action is limited by another person, that the latter has a duty to protect or
assist the former
o Most obvious type of this relationship is parent and child
o Other types; teacher and student, employer and employee, carrier and passenger, prison and inmates,
landlords and tenants, and hospitals and patients, etc.

IV. Creation of Danger

Oke v. Weide Transport Ltd, Man CA (1963)

FACTS: Defendant, knocked down a traffic sign; removed some debris, except for a metal post stuck in ground; wanted to
call police but was dissuaded from doing so; The next day a driver passed over the metal post, which came up through his
floorboards killing him
ISSUE: Can the defendant be held liable for his actions? YES
RULE: Not going to impose a duty on every person who sees a dangerous situation BUT are going to
impose duty on someone who made the dangerous situation
ANALYSIS: Majority dismissed the action on grounds of lack of foresight
DISSENT: Held that there was an affirmative duty to act
• The defendant recognized his creation of a dangerous situation - by getting out of the car and cleaning up what he
could and wanting to call the police - but failed in doing enough to mitigate the risk
• Also; he was the one who created the risk in the first place - even though it was not negligent

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 V. Reliance Relationships

Zelenko v. Gimbel Bros., New York SC (1935)

FACTS: Someone was injured/became ill in a store, the store owner decided to help them, they tried to take care of the for
hours before taking them to the hospital - they died
RULE: If someone undertakes a task then they must not omit to do what an ordinary man would do
in performing the task
ANALYSIS:
• General proposition of law is that if a defendant owes a plaintiff no duty, then refusal to act is not negligence
• BUT there are many ways for a duty to arise
o If the defendant undertakes a task, then they must not omit to do what an ordinary man would do
• Here the defendant undertook to render medical aid to plaintiff and kept them from the hospital for hours
o The ordinary person on the street would have called for an ambulance to go to the hospital sooner

VI. Statutory Duties

O’Rourke v. Schacht, SCC (1973)

FACTS: A barrier that marked a detour around an open excavation was knocked over at night; The OPP investigated but
failed to warn traffic about the danger on the road; the P was injured when he drove his car into the unmarked excavation
ISSUE: Did the police officers owe the P a duty of care to warn the public? YES
RULE: Statutory duties can create a duty of care – i.e. Police owe duty of care to road users
ANALYSIS:
• The duties imposed but statute on police officers is not exhaustive
• The responding officer was under a duty to maintain traffic patrol - namely to ensure traffic laws are obeyed,
investigate road accidents, and assist injuries persons à directed at preventing accidents and preserving safety
• There was a positive duty by virtue of their office for the police to take appropriate measures in the face of
hazardous conditions to warn the public of their presence
SCC: affirmed the ruling of the OCA
• In carrying out the highway patrol, was done in an attempt to keep the road safe for traffic therefore there should be
included a duty that proper notification be given to road users of potential danger

VII. Categories or Principles?

Childs v. Desormeaux, SCC (2006)

FACTS: After a New Year’s Eve party, D was impaired and drove his vehicle getting into an accident, P’s spine was severed;
party was BYOB, and the only alcohol served was ¾ bottle of champagne; D was known to be a heavy drinker; hosts walked
the D to his car
ISSUE: Whether social hosts owe a legal duty of care to third parties who may be injured by intoxicated guests? NO
RULE: Social hosts do not owe duty of care to the public unless the contribute to the creation of risk
ANALYSIS: Anns/Cooper Test:
Is this an already established duty of care? NO
• Closest comparison is commercial alcohol providers – which is not close enough because;
o Commercial hosts have the capacity and EXPECTATION to monitor alcohol consumption
o It is EXPECTED that commercial hosts will take steps to reduce associated risks
o The contractual nature of the commercial host relationship is fundamentally different than social hosts

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Step 1 - A prima facie duty of care? NO
• Law of negligence not only considers P's loss but explains why it is just and fair to impose the cost of that loss on a
particular D before the court - proximity is related to this 2-sided face of negligence
o (1) The injury to the P was not reasonably foreseeable
§ In the absence of evidence that the guy was drunk for sure there is no foreseeability that him driving
away from the party may lead to an accident
o (2) Even it is was - no duty would arise because this would have been a failure to act (non-feasance) where
there was no positive duty required
§ Foreseeability does not automatically lead to duty of care - in the absence of an overt act by the D the
it must be determined if there was sufficient closeness between parties [proximity]
Having concluded that a prima facie duty of care is not established there is no reason to consider if policy considerations
would negate the duty in the second step of analysis
• Just because you have a party - does not mean everyone checks autonomy at the door à autonomy was emphasized

Rankin (Rankin’s Garage & Sales) v. J.J., SCC (2018)

FACTS: Two minors became inebriated and went prowling; eventually entered the unsecured Rankin’s Garage lot, where
one minor decided to steal a car which was left unlocked with keys inside; while driving the stolen car, the car was crashed,
and the other minor suffered a brain injury
ISSUE: Was a duty of care was owed, when P is injured following the theft of a vehicle? NO
RULE: There is no duty of care owed when it is not foreseeable that the particular harm could result
to the particular plaintiff
ANALYSIS: Anns/Cooper Test
• Said this was a novel category, therefore started analysis à the test did not satisfy step 1
o SCC concluded the evidence in this case was not sufficient to prove it was reasonably foreseeable that leaving
vehicles vulnerable to theft would lead to the unsafe operation of a stolen vehicle and result in P’s injuries
• Fundamental disagreements between majority and dissent
o (1) Novel Duty of Care
§ M - there is no category already established
§ D - yes there is; where D's actions cause foreseeable personal injury to P – the original category
described in Cooper, used as a catch all category
• After this case this category may be too broad, why would there be other categories at all?
o (2) Injury as a reasonably foreseeable outcome of the facts of this case
§ M - there was a risk of theft, but the risk of theft by minors was not foreseeable
§ D - why are we separating adults and minors? We are talking about the general class of plaintiff's as
people who steal cars therefore minors are already included in this à therefore foreseeable

F. TORT LIABILITY OF PUBLIC AUTHORITIES

Proceedings Against the Crown
• In the beginning, the "king could do no wrong" - was above legislation and could not be sued
o There was a very broad prohibition against suing the government – or their employees
• In 1947 we decided this is not right à started by wanting to put private workers and government workers on the
same playing field, making them accountable regardless of the fact they worked for the government

Proceedings Against the Crown Act, 1990

Except as otherwise provided for in this Act the Crown is subject to all liabilities in tort which, if it were a person of full age
and capacity, it would be subject to
• (a) in respect to a tort committed by any of its servants or agents
• (b) in respect to a breach of the duties that one owes to one's servants or agents by reason of being their employer
• (c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property
• (d) under any statute, or under any regulation or by-law made or passed under any authority of any statute

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Negligence Liability of Public Authorities
• Absent an express legislative defense, public authorities have no greater right than any private defendant to commit
torts - should be held liable in the same manner and for the same reason for any act or omission that would be
considered torturous by a private defendant
• A statutory public authority is a body created by statute and thereby empowered or obligated to perform functions
in the public interest - generally policy-making, implementation or operational functions
• Was an evolution of tort liability to allow you to sue govt agencies for doing the things they are meant to do
according to statute

Just v. BC:
• Boulder came loose on highway, boulder fell on car killing Mr. Just's daughter and injuring him
• Sued BC for negligence in the operation of their highway inspections à Were successful
• Public authorities cannot be liable for policy decisions, but can be for the operation of those policies
Brown case:
• Very similar facts, but sued based on the particulars of the inspections - i.e. the policy decisions on what is included
• Was not successful because government cannot be liable for policy decisions

1. Foreseeability
1. Proximity (sliding scale test from Fullowka)
a. Statute
- First address if there is a statutory immunity clause which would negate all liability
- If so, the only way to continue analysis is if there is question about the limitations of the clause
b. Interactions/Circumstances
2. Policy considerations
- Consider policy vs. operation

Cooper v. Hobart (SCC)

• A government actor who may reasonably foresee that losses to individuals could result if careless in carrying out her
or his duties under legislation, does not have a prima facie duty of care to those individuals if the duty is not specified
in the legislation; adds broader policy element to Ann's test

Fullowka v. Pinkerton’s of Canada Ltd (SCC)

FACTS:
• During a strike at a mine, a disgruntled employee set up explosives that were detonated by a trip wire, killing 9
contracted staff - the widows sued the security company, the mine, the union; which all failed
• Considering the suit against gov. Canada in this case – based on failure to protect murdered miners from danger
created by Mr. Warren's (bomber) intentional wrongful acts, an omission by the gov. to prevent harm to the miners
ISSUE: Did Canadian Govt. (through their statutory inspections) owe a duty of care to the Miners? YES
RULE: Set up the spectrum analysis with Cooper and Hill on opposite ends; Also, added to reasoning
for proximity of regulators
ANALYSIS: Cracks open the door to public authority owing a duty of care - before this (since Cooper) the door was shut
tight unless it was explicitly stated in the statute
• There was clear volatility - direct threats to temporary workers - there was security set up, therefore it was known to
the mine and the inspectors that this was a dangerous situation
• This case set up a 'spectrum analysis' (sliding scale test)
o Insufficient Proximity (i.e. Cooper) <------------------------> Proximity (i.e. Hill)
• Reasoning for Proximity:
o Small well-defined group of people i.e. the workers and operators of the mine
o There was a close and direct relationship with the mine inspectors and miners (physical proximity is not
necessary but it very helpful to find proximity) – regularly in the mine and interacting with miners
o Statutory duty to the miners, specifically relating to the conduct of the miners
• Proximate relationship was established therefore DoC, but there was no breach of SoC; so, no negligence liability

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Taylor v. Canada (ON CA)
FACTS:
• Plaintiff brought a representative class action against the defendant the Attorney General of Canada in damages for
personal injuries suffered as a result of implantation of a 'TMJ implant'
• Taylor alleged that Health Canada was negligent in the exercise of its responsibilities under the Food and Drugs Act
ISSUE: Did the Canadian Govt. owe a duty of care to the P? Undetermined in the preliminary hearing
RULE: There are two situations that give rise to DoC for Statutory Regulators – when (1) found in
statute, (2) in absence of statute duty, look to interactions
ANALYSIS: Post Fullowka case à There are two situations for the creation of DoC for regulators
•
(1) Regulatory scheme
o Nature of the duty actually imposed by the legislative scheme
• (2) In the absence of duty in statute, must look to interactions (circumstances)
o Facts demonstrate a relationship and connection between the regulator and the individual that is distinct from
and more direct than the relationship between the regulator and that part of the public affected by the
regulator's work
• This was a motion to strike, and it was allowed to proceed to trial - as Taylor's claim was not 'bound to fail'
• Because this was preliminary - a DoC was not established 100% but was found that it was possible that there was a
DoC à would need to be proven in trial
• Application:
o Not suggested that Health Canada's conduct increased the risk to Ms. Taylor to essentially create a proximity
o Arguable that the misrepresentations combined with the failure to correct such misrepresentations in the face
of knowledge of the serious and ongoing risk posed, could be viewed as akin to the regulator's failure in
Fullowka - in which there was a sufficiently close and direct relationship established

R v. Imperial Tobacco (SCC)

FACTS: Canada sued by tobacco companies because the government told them that ‘low tar’ cigarettes were less harmful
to smokers; that was a negligent misrepresentation as tobacco companies relied on info and were sued; they are not suing
the government
ISSUE: Is Canada immune from tort liability in cases of negligent misrepresentation? YES – if it is a policy decision
RULE: Government policy actions are immune to tort; However, they can be sued for negligence in
operational actions
ANALYSIS:
• Canada claims that the policy decision to encourage smokers to use low-tar cigs. which promoted their
production/use cannot extend liability to them à Just v. BC true policy decisions are exempt from tortious claims
o Imperial claims that these decisions were not policy but rather the operation acts of their policies
• Two ways to deal with Imperial’s claim
o (1) DISCRETIONARY APPROACH: focus on the discretionary nature of the impugned conduct à public
authorities should be exempt from liability if they are acting within their discretion, unless the challenged
decision is irrational
• Problem: could make an overly broad exemption for government actors as many decisions could be
characterized to some extent as discretionary i.e. driving a govt. vehicle
• Discretion is concerned with if the actor had a choice to act on way or another
o (2) POLICY/OPERATION APPROACH: emphasizes the 'policy' nature of the conduct à 'core' policy decisions
and are exempt from liability so long as they are not irrational or in bad faith
• Problem: extremely difficult to determine if the actions are a part of policy or operation, many cases
actions could be argued as either (which does not make it a good legal test)
• Policy is a narrow subset of discretionary decisions - i.e. economic, social, political
• There must be a balance of holding government accountable, but recognizing that the government is not a person
and should be free to make policy decisions without liability
• SCC agrees with the policy/operation approach so long as they are based on public policy considerations concerning
economic/social/political factors and are not made irrationally or in bad faith

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 • Application: this was a "core" policy decision - therefore the claim of negligent misrepresentations is struck
Ernst v. EnCana Corporation, 2013 ABQB 537
FACTS: Motion to strike the claim by the ERCB
•
The appellant has sued the defendant EnCana Corporation for damage to her fresh water supply allegedly caused
by EnCana’s fracking activities
• The respondent Energy Resources Conservation Board (ERCB) has regulatory jurisdiction over the activities of
EnCana, and the appellant has sued it for what was summarized as “negligent administration of a regulatory
regime” related to her claims against EnCana
ANALYSIS: Motion to strike was allowed
• Chief Justice Wittmann begins and ends his analysis at the first stage of the Anns/Cooper test, which as noted is
concerned with foreseeability of harm and proximity [uses the spectrum test in Fullowka]
• Situating Ms. Ernst’s relationship with the ERCB as more like that of the unsuccessful investors and the Registrar of
Mortgage Brokers in Cooper than the miners to whom government inspectors were held to owe a duty in Fullowka
• Concluded that there was “no sufficient proximity to ground a private duty; nor was there a relationship
established between Ernst and the ERCB outside the statutory regime which created a private duty”; it was thus
“unnecessary to determine whether the harm to Ernst was foreseeable or to consider the second part of
the Anns test

Ernst v. Alberta (ERCB), 2014 ABCA 285

FACTS: Appeal of the motion to strike the claim by Ernst
ANALYSIS: Appeal was dismissed
•Court of Appeal seemed to jump immediately to the second, “residual policy considerations” stage, laying out a
series of reasons as to why any prima facie duty of care owed by regulators is usually negated
• These include the difficulty of distinguishing between policy and operational decisions, the potential for conflict
between private and public duties, and indeterminacy problems
o However, did not elaborate on why/how these concerns applied to this case
• Instead, simply concluded that J. Wittmann “correctly applied the test for determining whether the ERCB owed a
private law duty of care (Q: how could they determine this when they used a different part of test?)
PROFESSOR blog:
• As in Cooper, it seems reasonably foreseeable that Ms. Ernst would suffer some harm if the ERCB were negligent in
carrying out its duties, especially with respect to compliance and enforcement
• It is not obvious to me how owing a private law duty to those individuals particularly vulnerable or susceptible to a
regulator’s negligence would be unworkable or create indeterminacy problems

Ernst v EnCana Corporation, 2014 ABQB 672

FACTS: Motion to strike the claim by Alberta Regulator
• The appellant also sued the defendant Alberta, alleging that it (through its department Alberta Environment and
Sustainable Resource Development) owed her a duty to protect her water supply, and that it failed to respond
adequately to her complaints about the activities of EnCana
ANALYSIS: Motion to strike was dismissed – allowed to proceed to trial
•First Q: if the alleged duty fell within a closely analogous category where a duty had already been recognized; Ernst
argued cases regarding investigations (Hill) and negligent inspections (Kamloops) applied but the Chief Justice
considered this “overly broad,” which meant that the two-part Anns test had to be applied
• Step 1: set out a list of cases where a duty of care between a public authority and a plaintiff had been alleged –
applying this framework to this case, Chief Justice was satisfied that prima facie duty of care could be established
• Step 2: “residual policy considerations” - Alberta argued that “a private duty of care in this case would conflict with
the public interest à the Chief Justice disagreed – agreeing with Ernst that there was not conflict
• This left statutory immunity – Ernst argued that these were inapplicable in light of the pleadings that Alberta had
acted in bad faith (these provisions explicitly limit immunity to acts or omissions taken in good faith)
PROFESSOR blog:

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• Biggest difference here compared to ERCB, is that there was an established physical proximity because the
inspector actually went to Ernst's property à which may incentivize regulators not doing their job to escape
proximity and thus liability

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