1

BURDEN OF PROOF OF NEGLIGENCE?.................................................................................................................. 8

GENERAL RULE: [DEFAULT ON P TO EST. PRIMA FACIE AND ELEMENTS OF TORT CLAIMED  THEN EVIDENTIARY BURDEN SHIFTS ON D
TO REBUT].................................................................................................................................................................. 8
Wakelin v. London and South Western Ry. Co., (1886) A.C. (H.L.) [ P killed at train track, nobody saw. If you
can only infer equally either way  no prima facie est.]......................................................................................9
EXCEPTIONS TO THE GENERAL RULE:................................................................................................................................9
MacDonald v Woodard, (1974) ON CA [Squished by cars doing a jump start; Hwy Traffic Act  Reverse Onus
(placed upon D (if driver on hwy), from outset)]..................................................................................................9
CURRENT REVERSE ONUS LAW:........................................................................................................................................9
s.193 of Highway Traffic Act, R.S.O. 1990, c.H-8.................................................................................................10
FOR PARENT AND CHILD.......................................................................................................................................10
Parental Responsibility Act, 2000, S.O. 2000, c. 4 [Parent liable except if “exercises reasonable supervision =
reverse onus – criteria listed]...............................................................................................................................10
Shannon v. T.W. 2002 London Small Claims [Left their old enough kid w/ his bro @home, they robbed the
neighbors; “Reasonable Supervision =/= perfect supervison].............................................................................11
TRESPASS SHIFTING THE BURDEN OF PROOF....................................................................................................................11
Dahlberg v. Naydiuk 1969 Manitoba CA [ Farmer shot over P’s farm trying to hunt a deer and shot P; trespass
 reverse onus on D to disprove intention & neg.]............................................................................................11
MULTIPLE NEG. DEF.................................................................................................................................................. 12
Cook v. Lewis 1952 SCC [Two hunters, one shot, one victim; where there are 2, one is TF for sure but
impossible to tell (cuz of Ds)  reverse onus).....................................................................................................12
Res Ipsa Loquitor (The thing speaks for itself – circumstantial evidence; rarerly  reverse onus; usually only
an inference)........................................................................................................................................................12
Fontaine v. B.C. (Official Admin.) 1998 SCC [P’s husband found dead in truck with friend driver, claimed res
ipsa…; res ipsa can be neutralized with opposite inferences, no reverse onus, only prima facie may be est. thru
it., not here].........................................................................................................................................................13
Sindell v. Abbott Laboratories 1980 Calgary SC [Drug manuf. Held liable by % market share by reverse onus
(they may rebut they were not the faulty manuf.)].............................................................................................14
APPORTIONING LIABILITY.............................................................................................................................................14
Tobacco Damages and Health Care Costs Recovery Act, 2009, S.O. 2009, c. 13 (Applies Maj. Sindell principle
with more conditions/factors/criteria)................................................................................................................14
IS THERE A DUTY OF CARE OWED? QUESTION OF LAW......................................................................................15
PRE-ESTABLISHED RELATIONSHIPS:................................................................................................................................15
Donoghue v. Stevenson 1932 HL AC ( Snail in drink; extended liability for 1 st time from direct  “neighbors in
reasonable contemplation that may be harmed”-manuf.-consumer)................................................................17
Anns and the SCC (The Original – suff. Proximity + Policy considerations = DoC?).............................................17
Cooper v. Hobart 2001 SCC [P investors sue gov agency regulator for lost investment $; added residual policy
branch to Anns and used it].................................................................................................................................18
Odhavji v. Woodhouse 2003 SCC [P’s husband shot by cops, failed to comply w/SIU; DoC proximity of public
authorities supervisor yes, board and prov. no proximity]..................................................................................19
Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 [P and friend steal car injure themselves, sue garage
owner (left key inside);When assessing RF in stage 1 Ann, MUST BE OBJECTIVE]..............................................20
Moule v. N.B. Electric Power Comm 1960 SCC [Two trees, steps, a bridge, wires, and a boy; An unreasonable
mixture of unforeseen cumulative elements  not RF]......................................................................................21
Amos v. N.B. Elec Power Comm 1976 SCC [One tree, one boy, hidden wires; boy was acting reasonably, unlike
Moule who was unpredictable]...........................................................................................................................21
 2

Palsgraf v. Long Island Ry. Co., NY CA [Fireworks in newspaper on explodes in train station injuring bystander;
Maj: Need RF P; within risk zone; Dissent: No risk zone, but de facto]...............................................................22
DUTY TO RESCUE.......................................................................................................................................................23
Osterlind v. Hill 1928 Mass. SC [Drunk canoer watched by renter as he drowns; No right to be saved]............23
Matthews v. Maclaren; (Horsley v. Maclaren is after) 1969 ON HC [PC Yacht Party overboard; Duty to rescue is
not absolute; if rescue would’ve been fruitless even if neg. = no causation = no liability].................................24
Good Samaritan Act 2001 [Limits liability for volunteer, not grossly neg. rescuers]..........................................24
DUTY TO CONTROL THE CONDUCT OF OTHERS................................................................................................................25
Crocker v. Sundance Northwest Resorts Ltd. 1988 SCC [P drunk, in tubing comp.; Duty not to place others in
harm; commercial host; voluntary assumption of risk is vitiated by intoxication].............................................25
Stewart v. Pettie 1995 SCC [Drunk driver but wife was with him and sober; Commercial host liability to 3 rd
parties est. but can be discharged by placing in care of responsible person].....................................................26
Liquor Licence Act, R.S.O. 1990, c. L.19 [Liability for liquor sellers for harm of consumers]...............................27
Childs v. Desormeaux 2006 SCC [BYOB party, 3rd party injured by drunk guest; Social hosts do not owe same
Commercial DoC to 3rd Parties; essential differences between commercial v social host]..................................28
Maguire v. Padt 2014 ONSC [D’s crash caused another while apprehended by cops; Liability to rescuers is not
ended by “end of peril” but only the “foreseeability of the rescuers actions”....................................................29
Jane Doe v. Metropolitan Toronto Comm. Of Police 1998 OJ [Duty to warn [from a public body to individual]
derived from interactional proximity and statutory duty]...................................................................................29
DUTY OF CARE OWED TO A RESCUER (PREVIOUS WAS DUTY TO RESCUE).............................................................................30
Horsley v. MacLaren 1972 SCC [Other ‘hero’ in PC yachy party; Unless rescuer neg. created the original
danger, no duty to rescue unless the 1st attempt to rescue was so neg. it induced a 2nd rescuer by creating a
new danger. Not found here.].............................................................................................................................30
DUTIES OWED TO THE UNBORN:..................................................................................................................................31
PRE-CONCEPTION WRONGS:........................................................................................................................................ 31
UAW v. Johnson Controls 1991 US [Forced sterilization of battery factory employees; individuals have choice
of bearing risk, can’t force risk avoidance]..........................................................................................................31
WRONGFUL BIRTH.....................................................................................................................................................31
McKay v. Essex 1982 UK......................................................................................................................................32
WRONGFUL LIFE (BROUGHT BY THE CHILD, NOT THE PARENT)...........................................................................................32
WRONGFUL PREGNANCY.............................................................................................................................................32
PRENATAL INJURIES (MOST COMMON)..........................................................................................................................32
Paxton v Ramji 2008 ONCA [Acne drugs by prego  disabled kid; Dr. only owes DoC to mom, not in-utero
infant]..................................................................................................................................................................33
Dobson v. Dobson 1999 SCC [In-utero infant sues his mom for insurance purposes; No DoC between mom and
her in-utero child.]...............................................................................................................................................33
Alberta Maternal Tort Liability Act S.A. 2005 [A very limited legis. Attempt to solve Dobson mom-infant DoC
issue]....................................................................................................................................................................34
Leibig v. Guelph General Hospital 2010 ONCA [P claimed her baby injured during delivery; during delivery =/=
pre-conception; midwives are liable for neg.].....................................................................................................34
PSYCHIATRIC HARM DOC............................................................................................................................................34
Mustapha v. Culligan of Canada Ltd. 2006 ONCA [Fly in water; need reasonable person of “normal fortitude”
would suffer some type of psych. harm]..............................................................................................................34
Saadati v. Moorhead 2017 SCC [Personality change from crash; Doesn’t have to be medically recognized, but
a serious and prolonged disruption/psych damage, visible.]..............................................................................35
THE STANDARD OF CARE................................................................................................................................... 36
ARLAND V. TAYLOR 1955 ONCA [P HURT IN BIKE CRASH; EST REASONABLE PERSON TEST FOR SOC]........................................36
 3

U.S. v. Carroll Towing Co. 1947 [D took 21 hr. break from ship; Liability = B < (PxL); if B > (PxL): b= burden, p =
%of injury. L = gravity of injuryto det if SoC breached]...................................................................................36
Bolton v Stone 1952 HL AC [Cricket ball hits P; D can disregard risk if suff. small; if % occurrence is low but
gravity is high may justify finding breach of SoC]................................................................................................37
Paris v. Stepney Borough Council 1951 HL AC [One eyed worker now blind; Even if % of occurrence is low, if
gravity is high and burden is low can = breach of SoC].......................................................................................37
Vaughan v. Halifax-Dartmouth Bridge Comm. 1961[Dripping paint from bridge; If precautions are feasible =
low burden of precaution, high likelihood of occurrence breach of SoC].......................................................38
Law Estate v. Simice 1994 BCSC [One more CT-scan; Burden of adequate precaution must prioritize immediate
threat to physical injury before costs/financial concerns]...................................................................................38
Watt v. Hertfordshire County Council 1954 ONCA [Firefighter hurt by jack; If high social burden of adequate
precaution justifies a breach of SoC]...............................................................................................................38
SPECIAL SOC:............................................................................................................................................................39
FOR THE DISABLED:....................................................................................................................................................39
Fiala v. Cechmenek 2001 Alta. Ca [Crazy guy on car; If D is mentally disabled  modify reasonable person to
take account of capacity to understand DoC and control over actions @ time of event onus on D to est. as a
defence]...............................................................................................................................................................39
SOC OF CHILDREN......................................................................................................................................................40
Joyal v. Barsby 1965 ManCa [Girl crossing street; Modify reasonable person test to child of like age,
experience, and intelligence]...............................................................................................................................40
SOC OF PROFESSIONALS + CUSTOM..............................................................................................................................40
White v. Turner 1981 ON HC [Faulty boob-job; Judge prof. conduct by industry standard.]..............................40
Ter Neuzen v. Korn 1995 SCC [HIV from artif. Insem.; 1. If industry standard is obviously wrong it may fall
short of SoC, 2. Judge industry standard by the tech. knowledge @ time of tort, 3. Judge the prof. with an obj.
custom standard but take account his level of specialized skill].........................................................................41
Girard v General Hospital of Port Arthur 1998 ON [Patient gait exam falls; The custom of the industry is hard
to replace expert SoC with judge SoC].................................................................................................................42
Resurfice Corp. v. Hanke 2007 ONSC [Zamboni driver puts gas in water tank; even if injury is very grave; if very
NOT RF (i.e. dumb mistake)  no breach of SoC]...............................................................................................42
CAUSATION IN FACT [P MUST EST. D REBUT.].................................................................................................... 43
DIVISIBLE V INDIVISIBLE TORT (FORMER = CAN BE SEP. ATTRIBUTED; LATTER CAN’T)................................................................43
INDEPENDENT V JOINT TORTFEASERS..............................................................................................................................43
MULTIPLE CAUSES (JUST NEED TO BE “A” CAUSE)............................................................................................................44
STEP 1(B). MULTIPLE CAUSES...................................................................................................................................46
BUT-FOR TEST:..........................................................................................................................................................46
Kauffman v TTC 1959 ONCA [Handrails of TTC; If no evidence of but-for on b.o.p. no material causation]......46
Barnett v. Chelsea & Kensington Hospital Mgmt Cttee., 1969 QB [Poisoned Tea; If death/injury/loss would’ve
occurred anyways  no but-for causation]........................................................................................................47
ESTABLISHED MODIFICATIONS/EXCEPTIONS TO THE BUT-FOR TEST:....................................................................................47
MULTIPLE NEGLIGENT DEFENDERS: (Only 2 Ds; if more than 2  Material contribution)...............................47
Learned Intermediary Rule..................................................................................................................................47
Informed Consent:...............................................................................................................................................47
Material Contribution to injury:...........................................................................................................................48
Walker Estate v. York-Finch General Hospital 2001 SCC [Tainted blood transfusions; If but-for is unworkable
cuz of multiple independent causes to single harm ask did D’s conduct materially contribute to P’s
loss/injury?).........................................................................................................................................................48
MATERIALLY INCREASED RISK OF INJURY.......................................................................................................................48
 4

McGhee v. National Coal Board 1972 HOL UK [Dust to dermatitis; If impossible to prove on but-for due to
multiple potential factorsP must show D’s neg act sig increased the risk of the type of injury that actually
befell him material causation].........................................................................................................................48
Snell v Farrel 1990 SCC [Bad eye-op; 1.Even if other possible causes are natural, P must prove material
contribution to risk; 2. When impossible to prove this because of D’s acts/knowledge/position relaxed
standard for but-for]............................................................................................................................................49
Nowlan v. Brunswick Const. Ltee. 1972 CA [But for your, and my, work-architect/contractor; If multiple TF too
entangled in time to tell or both are necessary (suff. when combined neg.)  joint and severally liable (give P
100% then sort themselves out)].........................................................................................................................50
Athey v. Leonati 1996 SCC [P with predisposition got hernia from accident; If D’s act is A CAUSE, the necessary
and actual presence of other non-tortious factors to lead to the injury can still lend to finding causation. 2.
Thin Skull.]............................................................................................................................................................50
Dillon v. Twin State Gas and Elec. Co. 1932 [Boy falls off bridge grabs shocking wire; If P would’ve died
anyways, presence of D’s neg is negated as a material cause.]..........................................................................51
Penner v. Mitchell 1978 CA [P won at court then got sick; 1. If TF 1TF2: TF1 liable for full (including TF2 ‘s
caused losses). TF2 liable from his point on. 2. If TF1  NON-Tort  subtract time off from non-tort from time
of tort (TF1 NOT resp. for subsequent non-TF causes to P.].................................................................................51
Cotrelle v. Gerrard 2003 ONCA [P diabetic got gangrene due to neg Dr.; IF found that probable chance that D
denied you through his neg (over %50) on but-for  material causation to loss of chance to prevent harm]..52
Resurfice Corp. v. Hanke 2007 ONSC [Causation of poor zamboni design = explosion?; 1.Need substantial
connection between neg. and injury, 2. Modify but-for only when: impossible, clear breach, multiple (known?)
causes, if impossible to tell if 3rd person would be injured. 3.Stupid mistake/confusion may be more likely
cause than neg. (would a 3rd person suffer the same consequences?)...............................................................52
Clements v. Clements 2012 SCC [Motorcycle mand and wife; use “but for test viewed globally” instead of
material contribution which is exceptional because it works by adverse inference of causation only when
impossible otherwise]..........................................................................................................................................53
REMOTENESS.................................................................................................................................................... 54
WHERE CAUSATION IS CONCERNED WITH THE FACTUAL CONNECTION (BUT-FOR); REMOTENESS IS CONCERNED WITH LEGAL
CAUSATION............................................................................................................................................................... 54
DIRECTNESS TEST:......................................................................................................................................................54
Re Polemis…1921 [Dropped a plank, blew up the ship; To show injustice of old rule of directness (liable if
direct cause).........................................................................................................................................................54
WAGON MOUND 1…V MORTS DOCKS AND ENGINEERING 1961 (AUSTRALIA) [OIL SOAKED DECK/WATER TO FIRE/DAMAGE; EVEN IF
BUT-FOR PASSED, THE TYPE OF HARM WAS NOT A RF CONSEQUENCE OF D’S (NEG.) ACT.].......................................................55
DIFFERENCE BETWEEN RF IN DOC, SOC, AND REMOTENESS..............................................................................................55
THIN-SKULL.............................................................................................................................................................. 55
Hughes v Lord Advocate [Oil lamp fell into open manhole; As long as the type of harm was a RF consequence;
the mechanism in which it occurred or the actual extent of damage from that type = irrelevant.]...................55
Smith v Leech Brain & Co. [P’s husband’s latent cancer was triggered by work injury; Est. thin-skull doctrine; D
liable for full extent of actual harm if the RF type of harm is what is suffered]..................................................56
THIN WALLET RULE....................................................................................................................................................56
Dredger Liesbosch v Steamship Edison 1933 (UK HL) [P rented ship cuz too broke to afford new one; No thin-
wallet rule.]..........................................................................................................................................................56
Alcoa Minerals of Jamaica v Broderick 2000 (Privy Council) [P being broke  waited on repairs inflation led
to higher damage $; Thin wallet rule may be allowed if harm is RF type AND RF that P had a thin wallet]......56
THINK SKULL PYSCH...................................................................................................................................................56
Marconato v Franklin [P predisposed paranoid had personality change in accident; Thin Skull applied to psych.
cases too.]............................................................................................................................................................56
 5

REAL RISK....................................................................................................................................................................57
Wagon Mound 2 [Where P is the boat owner, new facts; Question for legal causation is whether it is a real
risk NOT very likely; awareness of risk = real, even if exceptional).....................................................................57
INTERVENING ACTS.................................................................................................................................................... 57
Assiniboine South School Division, No. 3 v. Greater Winnipeg Gas Co. [Snowmobile blows up school; 1-
(Intervening Act =/= past 3rd party neg; OR a contributing cause, but a new cause altogether (need suff.
Independence)); 2- if low RF type but high seriousness = more likely liable].....................................................57
Bradford v Kanellos [“GAS!” from noise; If the intervening act is RF = liable; if not RF  no liability, successful
break in chain of causation]................................................................................................................................58
Price v Milawski [Bad Dr.1 report  Dr.2  worse condition; The intervening act was RF  turns into a
contributing cause with accumulating effects of 1st TF neg.]..............................................................................58
ASSESSMENT OF DAMAGES............................................................................................................................... 58
PRINCIPLES IN ASSESSING DAMAGES:............................................................................................................................59
Burden of Proof: [On P for type/quantum, b.o.p.]...............................................................................................59
Mitigation of damages:.......................................................................................................................................59
Janiak v Ippolito [“unreasonable” refusal to mitigate losses]: Surgery had about 75% chance of success, many
small chances of bad side ......................................... effects, P’s refusal = “unreasonable refusal to mitigate”.
.............................................................................................................................................................................59
Set-offs for parallel expenditure: [For parallel, would’ve been spent any if tort wasn’t committed, costs].......59
Lump-sum payment system: [One time, risk of over/under comp; no review/reassessment]............................59
Role of juries, judges, and appeal courts: [Jury role to assess quantum, J limited in guiding except in special
damages].............................................................................................................................................................60
Andrews v Grand & Toy Alberta Ltd. [1.Est Sep Heads > Global; 2.Heads of assessments w/ explanations; 3.
“Reasonableness” of compensation; 4. Set-offs; 5. Tax/Interest; 5.Non-pecuniary harm +limit ($100k)].........60
J Cassells, Remedies: The Law of Damages [Sexist, Racist Assumptions in Assessments]..................................62
Blackwater v Pint [P @ IRS molested, + pas abuse; 1.If damage was caused by prior TF, subsequent TF should
not be held liable for prior’s damage; 2. He who is in better position to prevent to harm = bigger fault=carries
bigger apportionment;3. if crumbling-skull  no liability; 4. Look @ his fam. Job to see hypothet. job]..........62
EDG v Hammer [P molested by janitor and family; Thin Skull applies to any case where mult. Causes are
indivisible, regardless if precondition caused by TF or not].................................................................................63
SURVIVAL OF ACTIONS AND DEPENDANTS’ CLAIMS.........................................................................................................64
Ontario Trustee Act RSO 1990.............................................................................................................................64
Ontario Family Law Act RSO 1990 s.61 (1):[ Spouse, children, grandchildren, parents, grandparents, brothers,
sisters can sue for: (listed)]..................................................................................................................................64
Keizer v Hanna 1978 SCR [P breadwinner dies from neg; Dep gets what would’ve been “reasonably expected”;
Formula for dependents: (Salary X Working Years) – (income tax would’ve paid + personal use) = disposal
income = to dep.; Contingencies for remarriage, early death, etc.]....................................................................64
DEATH OF DEPENDENTS..............................................................................................................................................65
Mason v Peters: Except rarely, children = > cost than return..............................................................................65
Lai v Gill: Chinese tradition of support for parents  justified higher award.....................................................65
To v Toronto: First born son, only one speaking English, good student, paternal to sister  large award.......65
Collateral Benefits [If for ex. P receives an award from D to cover medical costs but P also has medical
insurance to pay for it. D refunded].....................................................................................................................65
DEFENCES......................................................................................................................................................... 65
INEVITABLE ACCIDENT: TO BE USED BY D AGAINST P’S CLAIM = SPECIAL DENIAL OF NEGLIGENCE...............................................65
CONTRIBUTORY NEGLIGENCE.......................................................................................................................................65
 6

Walls v Mussens Ltd.[ P tried to help D put out fire with snow; No cont. neg. if agony of the moment argument
raised  makes it reasonable  rebuts cont. neg. (P must’ve acted unreasonable given the circumstances] 66
Gagnon v Beaulieu [P passenger not wearing seatbelt; Not wearing seatbelt =/= automatic cont. neg.,
depends on relevancy of wearing belt to type of injury sustained onus is on D to prove; believe in efficacy is
irrelevant]............................................................................................................................................................66
Negligence Act RSO 1990 [If cont. neg  apportionment; common law trad. Is that it is a complete bar.].....67
Mortimer v Cameron 1994 ONCA [P horseplay injured himself;1.The loss of the cont. neg. must be RF just as
reg neg.; 2. D with more control over preventing loss = primary burden = bigger portion of damages; 3. The D
with an ongoing duty had bigger portion than D with past duty, even if past duty was neg.]...........................67
Snushall v Fulsang [P failed to wear seatbelt, cont neg.; Range for apportionment for P’s cont. neg if failed to
wear seatbelt = 5% - 25%]...................................................................................................................................68
Kennedy v London [P dumb cyclist hits pole; P can be found to carry majority of liability thru cont. neg.].......68
VOLUNTARY ASSUMPTION OF RISK = COMPLETE BAR TO RECOVERY.....................................................................................68
-was unsuccessfully tried in Crocker v Sundance.................................................................................................68
Dube v Labar [P and D both drunk, switched seats; V.A.R. = express/necessarily implied consent to assume risk
(legal and physical) and waive legal recourse]....................................................................................................68
DEFENCE OF ILLEGALITY.............................................................................................................................................. 69
Hall v Herbert [P and D both drunk, sue each other, counterclaim illegality; Only applies if D is trying to profit
from illegality or evading consequences of law].................................................................................................69
BC v Zastowny [P wants earning for when he was in jail; No rebate for valid punishment 3rd justification of
illegality defence; Illegality is defence that frustrates what would’ve been a valid action]...............................69
NEGLIGENT MISREPRESENTATION..................................................................................................................... 69
CAUSING PURE ECON LOSS:..........................................................................................................................................69
Hedley Bryne & Co v Heller & Partners Ltd 1963 (HOL) [Need reasonable reliance and RF reliance; exempted if
there is waiver-etc. clause.].................................................................................................................................69
Hercules Mgmts Ltd v Ernst & Young [Shareholders used misrep. docs for wrong reasons; In Neg Misrep Anns:
Do Proximity before RF; Add to 2nd branch policy: 1. ID of the representees to the representors + 2. The
purpose intended is what was actuated]............................................................................................................70
5 indicators of reasonable reliance:.................................................................................................................................70
BG Checo Intl Ltd v BC Hydo & power [Tenders called, submitted, and accepted based on contract mis rep.; If
concurrent claimRight to sue in torts remains but as limited by the provisions in the contract that expressly
intend to limit them; 2. Simply mentioning a tort duty in a contract =/= waiver of tort right.].........................71
Implied v Express distinction?..........................................................................................................................................71
Deloitte & Touche v Livent Inc [P’s auditor snaked the co.; Really do need to use the representation for the
purpose it was intended, wasn’t here; 2.Indeterminate liability is a concern not a veto, its components are
listed]...................................................................................................................................................................72
Queen v Cognos [P lied to in job interview; the reasonable person test for neg misrep. does not req the person
to guarantee the accuracy of the statements; 2. Waivers have to be specific enough].....................................72
J: 5 criteria from Hyde that should be met to est. neg misrep........................................................................................72
FIVE CATEGORIES OF PURE ECON LOSS:..........................................................................................................................73
NEG MISREPRESENTATION  PURE ECON LOSS.............................................................................................................73
Martel Building Ltd v Canada [P tried to sue cuz of bad negotiations; Lots of policy reasons to limit liability,
esp. in negotiations]............................................................................................................................................73
ON NEG SUPPLY OF SHODDY GOODS/SERVICES:..............................................................................................................74
Winnipeg Condominium Corp No 36. v Bird Construction [P a subsequent purchaser sues original contractor;1.
Privity barriers to liability must yield to policy;2. a neg. contractor is liable for defects caused by him that
emerge during the useful life of his work.]..........................................................................................................74
RELATIONAL ECONOMIC LOSS......................................................................................................................................75
 7

Bow Valley Husky Ltd v Saint John Shipbuilding [P trying to recover for 3 rd party neg-HOOL/BVI/BVHB…; 1.
Issue of indeterminate liability is especially pronounced in relational econ. loss cases; 2. Still just a concern,
there are policy concerns to support imposing DoC.]..........................................................................................75
INTENTIONAL TORTS......................................................................................................................................... 75
BATTERY:.....................................................................................................................................................................75
Malette v Shulman 1990 ONCA [Dr gives blood transfusion to Jehovah witness; P not required to prove lack of
consent; rather D must raise affirmative consent to the battery as a defence.].................................................76
Bettel v Yin [Storeowner accidently headbutts bad kid; Intention of offensive contact is only req. (or subst.
certain to result); NOT intent of injury/consequences].......................................................................................76
Norberg v Wynrib [Dr takes advantage of addict; Consent can be vitiated by undue influence: unequal position
& exploitation].....................................................................................................................................................76
Non-Marine Underwriters, Lloyd’s of London v Scalera [Need direct physical interference, not indirect].........77
ASSAULT:................................................................................................................................................................. 77
Holcombe v Whitaker [“If you sue me I’ll kill you!”;Generally conditional threat =/= assault, BUT (show of
force + unlawful demand (to avoid battery)) +R.A. in P’s mind of imm. threat = assault]..................................77
Police v Greaves [“Get off my prop. Or I’ll kill You!” to cops; If every other element met + perceived ability to
carry out threat even if conditional Assault]...............................................................................................77
Warman v Grosvenor [Harassed online; Even if otherwise “just words” a sufficiently strong apprehension of
imm. battery  Assault].....................................................................................................................................78
INTENTIONAL INFLICTION OF NERVOUS SHOCK/MENTAL DISTRESS:....................................................................................78
Wilkinson v Downton [Really bad prank, your husband’s injured; Even if otherwise just words, if it was a
misrepresentation constructed to cause mental harm, (or would be so obj. det.), even if extent is more than
RFliable]...........................................................................................................................................................78
Radovskis v Tomm [Claiming $ for mom of rape victim; Need actual proof of mental distress beyond grief +
shock must be direct consequence of D’s act].....................................................................................................79
Samms v Eccles [Stop asking for sex; If act is intended to be malicious, even without physical harm or medical
evidence  viable CoA; test included]................................................................................................................79
BROADENING OF LIABILITY.......................................................................................................................................... 79
Prinzo v Baycrest Centre for Geriatric Care 2002 ONCA [You’re just malingering; Even if flagrant and
outrageous,  liable for unforeseen extent due to thin-skull]...........................................................................79
DISCRIMINATION....................................................................................................................................................... 79
Seneca College…v Bhadauria [Claimed employment discrimination; Appeal gave hope for common law
remedy, SCC asserted only remedy is through Human Rights Code [Stat.]]........................................................79
PUBLIC AUTHORITIES: [DUTY/POWER? POLICY/OPERATIONAL?].......................................................................80
R v Sask Wheat Pool [Illegally sold ‘em rotten wheat; breach of statute = prima facie evidence of neg., need
full neg. analysis after  look @ statute for DoC/SoC]......................................................................................80
Just v R (BC) [Boulder killed P’s daughter; If discretionary power  if pure policy = immune/ if operational
decision = open to be liable (after an Anns’ test, in consideration of the statute)]............................................81
Effect of Cooper v Hobart on Liability of Public Authorities [When doing Anns for Public Auth. Put
policy/discretion analysis in 2nd branch; statute is primary consid. in finding prox./RF, can also @ interactions
above & beyond]..................................................................................................................................................81
Taylor v Canada (AG) [Implants were bad; Can find prox. In public auth. Through the interactions to find
relationship beyond general public-auth. Relationship. In the statute]..............................................................82
Alberta v Elder Advocate of Alb Society [Go ripped of elders; If nothing in the statute and no interaction-based
prox  no CoA]....................................................................................................................................................83
R v Imperial Tobacco Canada Ltd. [All Policy is discretionary but not all discretion is policy]............................83
 8

Davidson v Canada (AG) [Female RCMP sues the force; Can direct a CoA at a class of civil servants if the
institution is statutorily immune; public employers can be held vic. Liable for torts between civil servants]....85
Brown v Canada (AG) [Sixties Scoop; Gov. failure to perform a stat. duty = CoA; but if performance of the duty
would’ve led to the same result (inevitability) = no CoA]....................................................................................85
NUISANCE: [STRICT LIABILITY OFFENCE; REASONABLENESS OF EFFECTS NOT CONDUCT]....................................86
PRIVATE:.................................................................................................................................................................. 86
Sturges v Bridgman [English case on coming to nuisance rule]..........................................................................87
St. Lawrence Cement Inc.[Private nuisance = strict liability]...............................................................................87
340909 Ont Ltd v Huron Steel Ltd [Noisy plant and apt. building; 1. Nuisance is judged by wide standards [test
included] (severity(nature/duration), locale, utility, sensitivity; 2. P coming to nuisance =/= defence; 3.
Addition of fresh noise = new nuisance]..............................................................................................................87
Hollywood Silver Fox Farm Ltd v Emmett [Shooting on my land to annoy your foxes; 1. One can’t increase
liability of neighbor by putting his land to unnatural use; 2.If nuisance was created intentionally  strong
presumption of liability].......................................................................................................................................89
Tock v St John’s Metro. Area Board [Rain flooded basement; 1. The fact that damage will inevitably fall cuz of
statutory power =/= suff. to bar recovery]..........................................................................................................89
Ryan v Victoria (City) [Leading case on nuisance liability for public bodies; regardless of policy/discretion,
immunity only applies if practically impossible to avoid]....................................................................................90
Smith v Inco [Nickel infestation; Need to show some kind of damage/loss/interference to claim nuisance]....90
PUBLIC NUISANCE:.....................................................................................................................................................91
AG ONT v Orange Productions [Annoying concert; A common nuisance needs to be widespread in range and
indiscriminate in effect; Comm. = class of her Majesty’s subjects; Comm. entitled to quiet enjoyment]...........92
Hickey v Electricity Reduction Co. [Fishermen claiming part. In public nuisance claim; Need to have a special
right (not just special interest/preference/business) which is affected beyond your right as member of the
public]..................................................................................................................................................................92
REMEDIES FOR NUISANCE:.......................................................................................................................................... 92
Mendez v Palazzi [Roots threatening property; Need actual and substantial damage (or imminent) to justify
injunction (or quia timet injunction -respectively)]..............................................................................................93
Miller v Jackson [Cricket nuisance case; While no defence to say P moved to nuisance, can be mitigated if P
knew of or ought to have known about its presence and if the balance of community/private interests yield
that conclusion.; injunctions requires more careful consid. Than neg. claims]...................................................93
Spur Industries Inc. v Del E Webb Dev Co. [If aware, bring a pop into a prev agri area and sought/granted an
injunction against that lawful business which was previously not a nuisance compensated injunction; A
party cannot call upon the law to make a place suitable for him when it was not so before]...........................94

Burden of Proof of Negligence?

General Rule: [default on P to est. prima facie and elements of tort claimed 
then evidentiary burden shifts on D to rebut]
Legal or Evidentiary?

-Legal proof is on a b.o.p. and generally on P to prove the elements of neg. while D must defend if a
prima facie argument is made

-Evidentiary shifts between P and D

 9

-P’s burdens @ outset: 1-Prove elements of neg. on a b.o.p.

2-Establish a prima facie case with suff. Evidence.

--If these two not fulfilled, there is no liability in a non-suit

--If fulfilled, the evidentiary burden shifts on D

--Legal burden is still on P, but D must adduce suff. Evidence to rebut P’s prima facie case.

Wakelin v. London and South Western Ry. Co., (1886) A.C. (H.L.) [ P killed at train track,
nobody saw. If you can only infer equally either way  no prima facie est.]
D’s train went through a footpath and P’s husband was hit and killed. D denies, claims it was P’s
husband’s own neg. No witnesses or evidence. P needs to create prima facie case to est. neg. on D’s
part.

-P’s case as presented allows the facts to infer equally reasonably neg. for either P or D

-D: Suicide? i.e. Cont. Neg.?

-Its on D to prove cont. neg. But first neg. in the first place must be est.

-No liability

-Even if neg. was found, P would still have to face causation and likely fail there.

_____________________________________________________________________________________

Exceptions to the general rule:

MacDonald v Woodard, (1974) ON CA [Squished by cars doing a jump start; Hwy Traffic Act
 Reverse Onus (placed upon D (if driver on hwy), from outset)]
P was boosting D’s car, had their cars nose-to-nose. P injured when car struck him while D inside.

-P used s.133 of HWY Traffic Act (NOW s. 193-see below) to reverse onus upon D to prove that he was
not neg.

-P at first only needs to show that it was a collision that caused his damage

-When car from hwy. strikes a pedestrian, onus is on the driver, the def. whereas usually it
would be on P.

-D failed to satisfy how his vehicle could “leap” or “lurch” forward by itselfLiability found

Current reverse onus law:

Between CAR and PEDESTRIAN:
 10

s.193 of Highway Traffic Act, R.S.O. 1990, c.H-8.

Onus of disproving neg.
193.(1): When loss/damage is sustained by any person by reason of a motor vehicle on a highway, the
onus of proof that the loss or damage did not arise through the negligence or improper conduct of the
owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of
the motor vehicle. 2005
Application
(2) This section does not apply in cases of a collision between motor vehicles or to an action brought by
a passenger in a motor vehicle in respect of any injuries sustained while a passenger. 2005.
Definitions
(5) In this section, “motor vehicle” includes street car.
S.1(1) Definitions: “Highway= common and public highway, street, avenue, parkway, driveway, square,
bridge, viaduct or trustle, any part of which is intended for or used by the general public for the passage
of vehicles and includes the area between the lateral property lines thereof.
“motor vehicle” includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise
indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but
does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a
motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a
road building machine.
_____________________________________________________________________________________

FOR PARENT AND CHILD

-Reverse Onus and Vicarious Liability

Parental Responsibility Act, 2000, S.O. 2000, c. 4 [Parent liable except if “exercises
reasonable supervision = reverse onus – criteria listed]
Definitions
1 In this Act, except as otherwise provided in section 10, “child” means a person who is under the age of
18 years; (“enfant”) “parent”, when used in reference to a child, includes any individual who has lawful
custody of, or a lawful right of access to, the child. (“père ou mère”, “parents”) 2000, c. 4, s. 1; 2006, c.
21, Sched. C, s. 126 (1); 2016, c. 23, s. 62.
Parents’ liability
2 (1) Where a child takes, damages or destroys property, an owner or a person entitled to possession of
the property may bring an action in the Small Claims Court against a parent of the child to recover
damages, not in excess of the monetary jurisdiction of the Small Claims Court, (a) for loss of or damage
to the property suffered as a result of the activity of the child; and (b) for economic loss suffered as a
consequence of that loss of or damage to property. 2000, c. 4, s. 2 (1).
Same (2) The parent is liable for the damages unless the parent satisfies the court that, (a) he or she
was exercising reasonable supervision over the child at the time the child engaged in the activity that
caused the loss or damage and made reasonable efforts to prevent or discourage the child from
 11

engaging in the kind of activity that resulted in the loss or damage; or (b) the activity that caused the
loss or damage was not intentional. 2000, c. 4, s. 2 (2).
Factors (3) For the purposes of clause (2) (a), in determining whether a parent exercised reasonable
supervision over a child or made reasonable efforts to prevent or discourage the child from engaging in
the kind of activity that resulted in the loss or damage, the court may consider, (a) the age of the child;
(b) the prior conduct of the child; (c) the potential danger of the activity; (d) the physical or mental
capacity of the child; (e) any psychological or other medical disorders of the child; (f) whether the child
was under the direct supervision of the parent at the time when the child was engaged in the activity;
(g) if the child was not under the direct supervision of the parent when the child engaged in the activity,
whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision
of the child; (h) whether the parent has sought to improve his or her parenting skills by attending
parenting courses or otherwise; (i) whether the parent has sought professional assistance for the child
designed to discourage activity of the kind that resulted in the loss or damage; and (j) any other matter
that the court considers relevant. 2000, c. 4, s. 2 (3).

Shannon v. T.W. 2002 London Small Claims [Left their old enough kid w/ his bro @home,
they robbed the neighbors; “Reasonable Supervision =/= perfect supervison]
P’s home was robbed by D’s sons, aged 10 and 16. Both parents are defendants.
P: Parent’s decision to leave boys home all day = neg. (failure to exercise reasonable supervision).
J Miller: Parental Responsibility Actburden of proof upon D, the parents, to prove whether the
supervision they provided was reasonably sufficient.
-Took into account age and experience of older boy and decided it was reasonable for D to leave
him to watch younger bro while they’re at work.
-“Best alternative” would’ve been to get adult supervision, but “the standard of the …Act is
one of reasonableness, not perfection.”
D provided reasonably sufficient supervision arrangements  no liability dismissed.

Trespass shifting the burden of proof

Dahlberg v. Naydiuk 1969 Manitoba CA [ Farmer shot over P’s farm trying to hunt a deer
and shot P; trespass  reverse onus on D to disprove intention & neg.]
P hit by D’s bullet, D was trying to hunt, shot over P’s farm.
-Trespass of property and person issue, or negligence issue?
-If neg. is put forth, onus is on P.
From Cook v. Lewis 1952 SCC:
-If trespass is put forth, onus is on D to establish absence of intention and negligence
-If unintentional trespass, onus of proving neg. is on P (unintentional trespass = negligence)
-J: Found two areas of neg. on part of D., 1-firing in direction of farm buildings, and 2-failing to obtain
permission from D to hunt his land and fire across it.
Liability found.
 12

_____________________________________________________________________________________

Multiple Neg. Def.

Cook v. Lewis 1952 SCC [Two hunters, one shot, one victim; where there are 2, one is TF for
sure but impossible to tell (cuz of Ds)  reverse onus)
P was shot, there were 2 hunters present, one shot. Nobody knows which D was the one that shot P.
-If P claims trespass, he enjoys a shifted b.o.p. on D, buy he first need to place fault on someone
-Essentially impossible to place fault (a necessary element in a tort) on any particular one. Usually,
without particular fault, the case would fail.
 But this would violate the victim’s (P) remedial right of establishing liability for his damages
and his security of the person more generally (because in trial the jury found no neg. on
either D).
-The act of Ds necessitated the impossibility of proof of neg. originating from P, spoliation of evidence
Reverse onus upon both Ds to establish responsibility between themselves
-2 wrongdoers and one innocent victim, a remedy must be found. Both breached SOC.
-Majority: Dismissed appeal, liability found upon both D.
_____________________________________________________________________________________

Res Ipsa Loquitor (The thing speaks for itself – circumstantial evidence; rarerly  reverse
onus; usually only an inference)
“The thing speaks for itself”, a doctrine used when there is only circumstantial evidence.
-The facts of the case are peculiar in that they automatically raise an inference of negligence, things that
normally only occur from carelessness
-Example: Bryne v. Bondle 1863
-Flour barrel fell out of warehouse window and hit walker-by on head.
-Only could have occurred in a negligent situation, automatic negligence upon D.
Elements of:
1-Incident that normally only happens under careless events
2-Instrumentality of harm under sole management or responsibility of D
3-Lack of direct evidence
Effects of:
1-Reverse Onus so that D is red to show on a b.o.p. that his conduct did NOT lead to P’s injury
2-Conservative view: Does not reverse onus. Requires D to adduce suff. Evidence to raise
inference of proper care, at least as strong as the inference of neg, raised by P.
 13

3-More conservative view: Does not reverse onus. Provides a basis upon which some inference
of negligence may be found. The trier of fact is entitled to, but not required, to draw such inferences.
-An inference alone may not be suff. in b.o.p.
-Possible for D to avoid liability w/o rebutting P’s claim.
_____________________________________________________________________________________

Fontaine v. B.C. (Official Admin.) 1998 SCC [P’s husband found dead in truck with friend
driver, claimed res ipsa…; res ipsa can be neutralized with opposite inferences, no reverse
onus, only prima facie may be est. thru it., not here]
P is wife of dead husband. Found dead in passenger seat of Loewen’s (D) truck, which was found over
cliff. No witnesses or direct evidence.
P: The circumstantial evidence speaks for itself, res ipsa loquitor, to assert that there was neg. on D’s
part.
-In trial, this was deemed insufficient on a but-for test of causation
J: When to apply res ipsa luquitor:
-When the circumstantial evidence gives rise to an inference of negligence
-Can be strong/weak, circumstantially dependent and unpredictable application.
Effects of its application:
-Does not shift the burden of proof (no reverse onus). It can only overcome a motion for a non-
suit, i.e. est. a prima facie case for P.
-Not automatic liability, P must still prove causation on but-for
-D may raise inference of proper care, and if it is equally reasonable or more reasonable, it negates P’s
claim on a b.o.p.
-Its strength is dependant upon D’s rebutting inference strength
-Once prima facie case is established through res ipsa loquitor, P does nothing while:
-The trier of law (Judge only) decides whether it may apply
-The trier of fact (Judge or Jury) decides if it does apply
-Redundancy of the doctrine: The trier of fact weighs the circumstantial evidence against any direct
evidence anyways in order to see of prima facie case is established.
Application here: The only potential inference of negligence worth considering is that the truck must
have been speeding because it was fast enough to clear trees off of the roadside in which they went
through.
-The improper road conditions and bad weather serve to raise an inference that negate that of
negligence as the cause of the crash
-Very little is actually known
 14

-D succeeded in providing alternatives that did not include negligence, which were backed by
evidence
-This neutralized the inference of neg. raised by P through res ipsa loquitor
-Dismissed
_____________________________________________________________________________________

Sindell v. Abbott Laboratories 1980 Calgary SC [Drug manuf. Held liable by % market share
by reverse onus (they may rebut they were not the faulty manuf.)]
P’s mom was given drug used to prevent miscarriages. Drug was approved by FDA as an experimental
drug and required caution labels which were not provided. P is unable to specify which particular
manufacturer made the drug her mother consumed.
P: The marketing practices of the 5-6 companies which had 90% of the market share were the reason P
is in a situation in which she cant prove anything against any specific D
- The manufacturer is in the best position to discover defects and warn of harmful effects
Each D will be held liable for the proportion in market-share UNLESS it shows that it could not have
made the product that caused P’s injuries
Dissent: Radical departure from traditional requirement that P prove neg. by first placing blame on a
particular person, and this is unprecedented.
-The policy concerns relate to goals of tort law: compensation and remedying on the one hand, and
corrective justice requiring fault on the other. This tension may be better addressed by legislation.

Apportioning liability
Tobacco Damages and Health Care Costs Recovery Act, 2009, S.O. 2009, c. 13 (Applies Maj.
Sindell principle with more conditions/factors/criteria)
Scope
7 (1) applies to …damages, or the cost of health care benefits, alleged to have been caused or
contributed to by a tobacco related wrong 2009, c. 13, s. 7 (1).
Two or more defendants
(2) If a plaintiff is unable to establish which defendant caused or contributed to the exposure
(b) and, as a result of a breach of a common law, equitable or statutory duty or obligation
(a) one or more defendants causes or contributes to a risk of disease by exposing persons to a type of
tobacco product; and
(b) the plaintiff has been exposed to the type of tobacco product referred to in clause
(a) and suffers disease as a result of the exposure, the court may find each defendant that
caused or contributed to the risk of disease liable…equal to the proportion of its contribution to that
risk 2009, c. 13, s. 7 (2).
Considerations
 15

(3) The court may consider the following in apportioning liability :

(a) length of time a defendant engaged in the conduct
(b) the market share the defendant had in the type of tobacco product
(c) the degree of toxicity of any toxic substance in the type
(d) the amount spent by a defendant on promoting
(e) the degree to which a defendant collaborated or acted in concert with other manufacturers
(f) the extent to which a defendant conducted tests and studies to determine the risk
(g) the extent to which a defendant assumed a leadership role in manufacturing the type
(h) the efforts a defendant made to warn the public
(i) the extent to which a defendant continued manufacture or promotion … after it knew or ought to
have known
(j) affirmative steps that a defendant took to reduce the risk

Is there a Duty of Care owed? Question of Law

- Was the D under a legal obligation to exercise care to P?
 1. Is there a established relationship?
 A) GENERAL PRINCIPLE: Donoghue case: duty not to cause harm to “our neighbour”
LIMITED TO NEGATIVE DUTY; NO POSITIVE DUTY UNLESS EXCEPTIONAL 
absent a special relationship (i.e. rescue (voluntary, or if D caused it), paternal)
P MUST be within the RISK ZONE of D’s act/omission (see Palsgraf)

Pre-established relationships:

 *General Rule: Donoghue, Ann, Cooper, Childs

 Neighbour, Close Proximity: Donoghue
 Manufacturer: Donoghue
 Workplace and Drinking: Hunt
 Public Risks: Haley, Palsgraf, Amos, Moule,
 Disabled: Haley,
 Business: Osterlind,
 Intoxication: Hunt, Childs, Stewart v. Pettie, Liquor Act, Crocker
 Cops: Odhavji, Jane Doe
 Social Host: Child, Liquor Act,
 16

 Commercial Host: Child, Stewart v. Pettie, Liquor Act, Crocker

 Psychiatric Harm: Mustapha, Smith
 Doctor: Paxton, Liebeg
 Rescuers: Horsley, Good Samaritan Act, Maguire, Matthews, Osterlind,
 Counsellors/Confidentiality: Smith
 Unborn/In womb/Before womb: Johnson Controls (Right to choose whether
to be exposed to risk), Paxton (Acne meds and sterile husband), Dobson
(maternal immunity), Maternal Act, Liebeg (during delivery)
For all novel cases, use Anns/Cooper Test:

1-A) “Was the harm that occurred the reasonably foreseeable consequence of
D’s act?”
ii) Foreseeability
 must ask: at the time of the alleged tort, was it reasonably foreseeable to a person
in the D’s position. Not independently sufficient.
 a) a risk of injury, in general (Moule and Amos)
 b) foreseeable towards the particular P (Palsgraf- reasonable plaintiff)

ii) Is there sufficient proximity between P and D?

-The relationship type’s “…expectations, representation, reliance, and the
property or other interests” to “evaluate the closeness”
A) relational (need proximate relation) (B) locational (same location)
(C) temporal (same time frame) [Not necessary, but helpful indicators]
B) “Are there reasons, notwithstanding the proximity between the parties
established in the first part of this test, that tort liability should not be
recognized here?
-Policy considerations in imposing a DOC that arises out of the relationship
between P and D
2- Are there “residual policy considerations outside the relationship of the parties that may
negative the imposition of a DOC”?
-Floodgates, indeterminate liability (value, class, temporal), integrity of the legal system,
insurance scheme out of tort law, pure policy, statutory duty, national emergency
_____________________________________________________________________________________

Donoghue v. Stevenson 1932 HL AC ( Snail in drink; extended liability for 1st time from direct
 “neighbors in reasonable contemplation that may be harmed”-manuf.-consumer)
P buys a drink, drinks some of it, discovers a snail in it, and sues the manufacturer for her medical illness
damage.
-Opaque bottle, sold by manufacturer to a distributor which made inspection of the product before final
sale impossible.
 17

-Manuf. Still under a legal duty to take reasonable care that the item is free from defect which
can cause harm to the plaintiff?
-No established category of a DOC between a manuf. And consumer.
-Look at underlying logic of the categories established, you find concepts of proximity and
foresight as elements in the relationships.
L. Atkins: General sentiment of moral wrongdoing calls for a remedy. The moral: love thy neighbor
become the legal: do not harm your neighbor.
Limiting “neighbor” to those in sufficient proximity between the parties that it should
reasonably be in the contemplation to D that his actions/omissions may injure
-A reasonable foreseeability that one would be affected
-The risk foreseeable in terms of P’s class (here as a consumer)
Here, the proximity was not too remote, and a DOC was established.
Dissent: This is a departure from the traditional rule which requires established direct relationships.
-Policy concerns of floodgates of expanding liability
-In big business world, this means a lot of possible new plaintiffs
_____________________________________________________________________________________

Anns and the SCC (The Original – suff. Proximity + Policy considerations = DoC?)
Established a two-stage analysis for establishing a DOC:
1-Sufficient proximate relationship such that it is reasonably foreseeable that an action can
cause harm to another
-If this is found, a prima facie DOC is established and D must rebut it.
2-Any policy consideration which should limit the scope of the DOC?
-Which class of plaintiffs is it owed to?
_____________________________________________________________________________________

Cooper v. Hobart 2001 SCC [P investors sue gov agency regulator for lost investment $; added
residual policy branch to Anns and used it]
P invested in Eron Co., governed by a statute. That statute allowed D to investigate complaints, freeze
funds, and suspend licenses of companies like Eron.
D suspended the license of Eron, but the delay was negligent according to P who had lost a lot
of money.
Application of Anns Test:
 18

-First ask “whether the case falls within or is analogous to a category of cases in which a DOC has
previously been recognised?
1-A) “Was the harm that occurred the reasonably foreseeable consequence of D’s act?”

i) Is there sufficient proximity between P and D?

-The relationship type’s “…expectations, representation, reliance, and the
property or other interests” to “evaluate the closeness”
-If between public authority and x; look at statute for proximity; if
not then may be inferred from the interactions in their
relationships

If yes
B) “Are there reasons, notwithstanding the proximity between the parties established in the
first part of this test, that tort liability should not be recognized here?
-Policy considerations in imposing a DOC that arises out of the relationship between P
and D
If both A and B are establishedPrima facie case exists subject to:
2- Are there “residual policy considerations outside the relationship of the parties that may
negative the imposition of a DOC”?
Here policy v operational decisions can be analyzed
Its application here:

1- A)“Was the harm that occurred the reasonably foreseeable consequence of D’s act?”
-Yes; “It was reasonably foreseeable that the alleged negligence in failing to
suspend eron…might result in financial loss to the P”

-Is there sufficient proximity between P and D?
-No; their relationship arises solely out of a statute which outlines all the duties D owes.
It says D owes a duty to the general public. It does not say any duty is owed to any individual investor =
insufficient proximity.
-Don’t need to proceed, but even if prima facie were established, it would have been negated at 2nd
stage of residual policy considerations because the agency is not an investors’ insurance.
-No DOC found, no liability.
_____________________________________________________________________________________

Odhavji v. Woodhouse 2003 SCC [P’s husband shot by cops, failed to comply w/SIU; DoC
proximity of public authorities supervisor yes, board and prov. no proximity]
*Not a trial but a preliminary hearing to see if there is a cause of action before the merits of the case can
be assessed.
 19

P’s husband was fatally shot by Toronto Police. P alleged that failure of the D (two cops) to comply with
the SIU investigation was negligent and caused their emotional harm.
DOC Analysis (Anns/Cooper Test) applied to each D:
1-Chief of Police
-1. A) Was the harm that occurred the reasonably foreseeable consequence of D’s act? =
Was it reasonably foreseeable that failure to comply with the SIU’s investigation could
result in emotional harm?
Yes, direct supervisory position too.
i) Is there sufficient proximity between P and D?
Yes-Proximity determined through governing statute, Police Services
Act expected to fully cooperate with SIU
B) “Are there reasons, notwithstanding the proximity between the parties established in
the first part of this test, that tort liability should not be recognized here?”
-Yes, the Chief is a public actor; is it just and fair to impose a private law duty on
him?
No: 1-Direct causal link between misconduct and harm, he is supervisor.
2-Public expects chief to be mindful of injuries caused by misconduct.
3-This public expectation is reflected in the governing statute
First stage satisfied,  prima facie established (Since this is a preliminary
hearing this is as far as they go.)
2-Metropolitan Toronto Police Services Board (for failure to enact training
procedures or proper policy)
1.A) Was the harm that occurred the reasonably foreseeable consequence of D’s act?
-Even if it is, you need proximity,
i) Is there sufficient proximity?
-No, it is not responsible for effective and adequate police services not for
ensuring that police officers do their duties.
-They supervise the chief, and has discretion  no prima facie case
No prima facie DOC
3-The Province (for failure to train properly and implement proper policies)
1. A) Was the harm that occurred the reasonably foreseeable consequence of D’s act?
-Even if it is, you need proximity,
i) Is there sufficient proximity?
 20

-Province’s responsibility for police training procedures to ensure cooperation

with SIU but this is not sufficient because it is not involved in the day to
day activities and is not under any extra statutory obligations.
No prima facie DOC
_____________________________________________________________________________________

Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 [P and friend steal car injure
themselves, sue garage owner (left key inside);When assessing RF in stage 1 Ann, MUST BE
OBJECTIVE]
D has a garage, left car outside on his property, unlocked with the key inside. 2 minors steal the car,
joyride, and crash. P is injured passenger (minor), sues garage (among others) for neg. causing injury.
Issue: Did D owe a DOC to P?
A positive duty on garage owners to prevent theft?
-Not an established category.
Anns/Cooper Test; use of foreseeability and proximity to limit liability because it is unjust to impose
otherwise if it is impossible for D to have foreseen the risk.

1. A) Was the harm that occurred (theftinjury) a reasonably foreseeable consequence of

D’s act (leaving the car unlocked with the key inside)?
-The type of harm, vehicle theft leading to injury, is overly broad. The types of
recognized categories should be narrow.
The risk of theft was foreseeable. The risk of injury was not
-Risk of theft =/= risk of theft by a minor, it is only possible, not probable.
-Policy: Can’t have just possible, but must be probable.

Objective Reasonable Foreseeability test: Another garage owner, in a similar context,

reasonably foresee that the theft would be done be a minor without driving experience
and injure himself?
-Just because he is a minor =/= any obligation from the garage; no paternal
relationship here
Nothing inherently risky about a car; not like leaving a gun cocked and
loaded outside.
P failed to establish prima facie case. Dismissed.
_____________________________________________________________________________________
 21

Moule v. N.B. Electric Power Comm 1960 SCC [Two trees, steps, a bridge, wires, and a boy;
An unreasonable mixture of unforeseen cumulative elements  not RF]
P is 10 ½ y/o, climbs up steps nailed to tree, across platform, to other tree, up that tree, steps on branch,
falls and contacts electric wire, gets shocked.
Was the risk of injury a reasonably foreseeable consequence of D’s act?
-The wires were placed 33ft. high, they took the standard precautions short of cutting the tree down.
-The nailed steps someone had placed and the platform formed an attraction for young children
-Nobody saw anyone climbing this tree before, esp. not as high as P did.
-Tree has still been climbed by kids before, and the wire’s location is known so  reasonably
foreseeable risk of injury
BUT The mixture of the elements (platform, steps) + the misfortune of the rotten branch +33ft. high
up wires (precautions taken)  No liability
_____________________________________________________________________________________

Amos v. N.B. Elec Power Comm 1976 SCC [One tree, one boy, hidden wires; boy was acting
reasonably, unlike Moule who was unpredictable]
P is 9 y/o, climbs tree (with two other boys) which has a electric wire running through its branches,
concealed. Gets shocked.
DOC?
1 A) Was the risk of harm a reasonably foreseeable consequence of D’s act?
-The danger in a wire being concealed by branches of a tree which may be climbed by
kids is a reasonably foreseeable danger
-D: The practice of trimming every 4-7 years was up to date.
J: The incident itself showed that this was insufficient
-J: This is distinguished from Moule 1960, because in this case the boy was acting reasonably for
his age, but in Moule the boy had to do a whole lot more unpredictable stuff
 Found reasonably foreseeable (DOC Found)
_____________________________________________________________________________________

Palsgraf v. Long Island Ry. Co., NY CA [Fireworks in newspaper on explodes in train station
injuring bystander; Maj: Need RF P; within risk zone; Dissent: No risk zone, but de facto]
P was standing on stairs of train station. Many feet away, a man is hopping on the train and almost falls
down while doing so; an employee of the train station on the platform helps him by pushing him from
behind into the train cabin. While doing so, the employee caused the man to drop a package of
 22

fireworks concealed with newspaper. The fireworks dropped and exploded, causing a weight scale near
P to fall upon her, injuring her. She sues the employee for neg.
Is there a DOC owed?
-Was is the risk of injury [to P] a reasonably foreseeable consequence of D’s act?
Majority: -There is no relation between P and D, D only owed a duty to those in the risk zone
which P was not in. The risk zone includes those class of persons who could reasonably be
foreseen to be injured by D’s act.
-Where is the connection of the employee to P?
-P must show that wrong was done to her that violated her right
-Negligence is not abstract, but is relative and relational.
-Arises out of duty to avoid risk, risk is relational (risk of what?)
-Speeding is not an inherently negligent act, but a relatively neg. one; but
speeding in the city is negligent, but speeding in a race track is not.
There is no DOC owed from the employee to P; too remote; he only owed DOC to those in risk
zone which she was not in.
-P must belong to a class of persons to whom risk is foreseeable. The Reasonably Foreseeable
Plaintiff Test;
-If in Moule/Amos it was an adult climbing the tree, he would not belong to the RF class
of P which is childrenunforeseeable; similarly the minors in Rankin’s Garage.
Dissent: Whether a DOC is found depends on the theoretical stance towards negligence law in torts.
-Majority says duty must be particularized before it exists; Dissent says that there may be a
general duty that exists before it is particularized
-Majority: Duty to X. Dissent: Duty to the world/public.
-Then the majority would have only those affected within the class of X to be
compensatedthis is a proximate cause issue not strictly negligence
-The dissent says P is responsible for all those actually affected, not only those affected
who were reasonably foreseeable victims.
D’s act was negligent, he is liable for those who he affected:
-If the package had just brokenliable to the man
-If the package fell and hit someone’s legto that person
-If the package happened to be fireworks that exploded and caused a
scale to fall and hit a woman that woman.
Not too remote, there was proximity in time and space, continuous
and natural, with the only intervention being the scale.
Special DOC; Affirmative Action/ Positive Duties
 23

-Misfeasance = an actual act; -Nonfeasance = omission of an act

General Rule: Only misfeasance claims are compensable; Positive duties to act that can give rise to a
compensable claim under nonfeasance are rare.
-Cultural capitalistic individualism, amorality of legal positivism, moral obligations not a basis for
liability
-Positive duties are intrusive to the individual; there is a practical difficulty in setting out positive
duties
_____________________________________________________________________________________

Duty to Rescue
Osterlind v. Hill 1928 Mass. SC [Drunk canoer watched by renter as he drowns; No right to
be saved]
P’s husband is dead, she sueing on his behalf. Claims D negligently rented out a canoe to her husband
while he was obviously intoxicated and then failed to rescue him while he heard him calling for help for
½ hr. holding on to his canoe.

P: Intoxicated  incapable of caring for himself

-D: But he was capable enough to hold on to the boat for ½ after?
P: Canoe was “frail and dangerous”.
-D: All boats generally are; it is not “out of repair and unsafe”.
 No negligence in renting the boat.
No negligence in failing to save either; no violation of right (to be saved)
No DOC found
_____________________________________________________________________________________

Matthews v. Maclaren; (Horsley v. Maclaren is after) 1969 ON HC [PC Yacht Party

overboard; Duty to rescue is not absolute; if rescue would’ve been fruitless even if neg. = no
causation = no liability]
2 Ps, each husband is dead. D is owner/operator of yacht, invited P and family on the boat. Matthews
(one of the husbands) fell off the boat on his own accord. D tries to save him. (Horsley jumps in after to
try too, but dies trying.)

-Fatal Accidents Act RSO 1960 c.138

3 issues: 1 -Did D, as captain, owe a DOC to P as invited passenger?

 24

-Usually a DOC is only found in situations of misfeasance, and nonfeasance is only exceptionally
recognised in special categories, this is one of those categories where nonfeasance may be
negligibly liable.

-Can be disguised as an implicit contractual duty

-Vanvalkenburg v. Naillum Nav. Co. 1913:

-No liability for nonfeasance except if danger was caused by D in the 1 st place.

-Canada Shipping Act RSO 1927:

A master of a vessel must save someone lost or drowning at sea, within the limits of
personal safety, even if that person is a foreign enemy of state.

Universal sea custom of the captain’s duty to help those overboard

There was a DOC owed to try to rescue Matthews

2- Was there negligence on the D’s conduct? (Did he breach the SOC?)
Brought experts on boat rescue op.: D’s conduct fell short of standard;
he knew what the standard was but his intoxication caused an error in judgement
breach of SOCnegligent conduct

3- Is the captain liable for the damages?

-Expert evidence on death: Matthews died immediately from cold shock
-Witnesses: Did not see Matthews moving in the water
Couldn’t have saved him even if there was no breach.
No causation no liability
_____________________________________________________________________________________

Good Samaritan Act 2001 [Limits liability for volunteer, not grossly neg. rescuers]
-Limits liability to voluntary rescuers (w/o expectation of compensation) in case of
breach of SOC in their attempt, unless grossly neg.
Protection from liability
2. (1) Despite the rules of common law, a person described in subsection (2) who
voluntarily and without reasonable expectation of compensation or reward provides the
services described in that subsection is not liable for damages that result from the
person’s negligence in acting or failing to act while providing the services, unless it is
established that the damages were caused by the gross negligence of the person. 2001,
c. 2, s. 2 (1).
Persons covered
(2) Subsection (1) applies to,
(a) a health care professional who provides emergency health care services or first aid
assistance to a person who is ill, injured or unconscious as a result of an accident or
 25

other emergency, if the health care professional does not provide the services or
assistance at a hospital or other place having appropriate health care facilities and
equipment for that purpose; and
(b) an individual, other than a health care professional described in clause (a), who
provides emergency first aid assistance to a person who is ill, injured or unconscious as a
result of an accident or other emergency, if the individual provides the assistance at the
immediate scene of the accident or emergency. 2001, c. 2, s. 2 (2).
_____________________________________________________________________________________

Duty to Control the Conduct of Others

Crocker v. Sundance Northwest Resorts Ltd. 1988 SCC [P drunk, in tubing comp.; Duty not to
place others in harm; commercial host; voluntary assumption of risk is vitiated by
intoxication]
*Commercial host where P is intoxicated/injured.
P was drunk, took part in tubing competition on D’s resort. Employee’s of D noticed P intoxicated, yet
allowed him to participate. He was injured and sues for negligence.

Issues: 1) Did D owe P a DOC?

-Jordan Hare Ltd. v. Menrow:

-One is under a duty not to place another person at risk where it is reasonably
foreseeable that injury could occur.

-D knew P was intoxicated. They knew allowing him to tube was dangerous, evidenced
by the fact that they had spoken to him about it and warned him.

This warning shows sufficient closeness and proximity  A DOC was owed

2) Was there a breach in the SOC?

-Could’ve disqualified him or otherwise prevented him from participating, but instead
when he fell of his tube at one point, they offered him a new one.

-D in control of events, promoted the dangerous sport for profit

 The burden of adequate prevention was very low, but the probability of injury and
gravity are highthere was a breach in the SOC negligence

3) Did D’s act cause the injury of P?

-Here it is D’s omission, that is their failure to prevent participation by P.

 26

-D: Drunk or sober, tubing is inherently dangerousvoluntary assumption of risk + signed a

waiver form  no harm where there is consent  no liability

-J: Two claims; 1- Participation in a dangerous sport waives liability in itself

-But he was drunk, could not see the physical risks, or the legal
risks

2-P’s signature of a waiver form signalled his consent

-But he was drunk, could not understand the waiver, did not
read it does not express his intention

no voluntary assumption of risk overriding the negligence in D’s omissionliability found.

_____________________________________________________________________________________

Stewart v. Pettie 1995 SCC [Drunk driver but wife was with him and sober; Commercial host
liability to 3rd parties est. but can be discharged by placing in care of responsible person]
P was with her husband, her brother and his wife. Attended commercial event hosted by D.

 2 men drank, the women didn’t. Drunk man (Pettie) drove and crashed, injuring P. P sues D for neg.
causing injury.

Is there a DOC owed?

-Distinguished from Sundance because there P was the intoxicated party and it was
determined that a commercial host owe a duty to its patrons.

-Here since P was not the drunk driver, but still got injured as a result of a drunk patron
of D’s, the question is does a commercial host owe a duty of care towards a
third party?

-If a duty of care exists for the patron, it exists for those that come into contact with said patron
in terms that the patron does not pose a harm to other as a result of D’s acts.

In this case, it is a duty to prevent a drunk patron to drive on a highway and present
a risk to users of the highway.

-P was a user of the highway, it does not matter if she was at D’s event or not.

Proximity and Reasonable Foreseeability exist a DOC exists

2. SOC:
P: Breach of it by; 1-serving past point of intoxication
2-having breached 1, allowing X to drive drunk
J: 1 can’t be basis for liability; how can overserving in itself 
harm to users of highway? Need to be driving; only 2 is
relevant.
 27

P: Alberta Liquor Control Reg, prohibit overserving

J: Even if, still not a basis for liability, needs to be
connected to the risk of harm.
-The existence of a special relationship between P and D is only good for establishing
DOC. Need to consider foreseeability of risk of harm.
-P: Drink # were monitored, D knew of drunkenness
-D: (The group arrived together and left together = reasonable inference they
were together) + (2 of them were sober)
-Jordan House v. Mennow: SOC discharged by making sure drunky gets
home safely by taking him under its charge or placing him under the charge of a
responsible person
-He already was in the charge of a ‘responsible’ sober person- his
sister and wife.
No breach of the SOC No liability.
_____________________________________________________________________________________

Liquor Licence Act, R.S.O. 1990, c. L.19 [Liability for liquor sellers for harm of consumers]

Civil liability
s.39 The following rules apply if a person or an agent or employee of a person sells liquor to or
for a person whose condition is such that the consumption of liquor would apparently intoxicate
the person or increase the person’s intoxication so that he or she would be in danger of causing
injury to himself or herself or injury or damage to another person or the property of another
person:

1. If the person to or for whom the liquor is sold commits suicide or meets death by accident
while so intoxicated, an action under Part V of the Family Law Act lies against the person who or
whose employee or agent sold the liquor.

3. If the person to or for whom the liquor is sold causes injury or damage to another person or the
property of another person while so intoxicated, the other person is entitled to recover an
amount as compensation for the injury or damage from the person who or whose employee or
agent sold the liquor. R.S.O. 1990, c. L.19, s. 39.

_____________________________________________________________________________________
 28

Childs v. Desormeaux 2006 SCC [BYOB party, 3rd party injured by drunk guest; Social hosts
do not owe same Commercial DoC to 3rd Parties; essential differences between commercial v
social host]
P injured in car accident caused by drunk driver. Driver came from a BYOB party which D hosted. P sues
the host of the party for negligent omission.

DOC?

Sundance established a DOC for commercial guests, Stewart v. Petties extended it to third
party victims, but this is a case where liability is alleged for a social host to a third party victim

-Sufficiently analogous? (Commercial =/= social host) No because,

1-Commercial hosts have a capacity to monitor alcohol consumption levels required for
a positive act based on intoxication of guest

2-Commercial hosts that serve alcohol are governed under the liquor control licensing
regimes which impose special duties upon commercial hosts (such as that to
monitor) imposing a special relationship between them and third parties.

-Institutionalized set of expectations that don’t exist for a social host.

3-Contractual nature of the relationship

-Profit making incentiveincentive to overserveputs public at risk

-social hosts have no duty to general public

Not sufficiently analogous  Anns test:

1- Was the harm a reasonably foreseeable consequence of D’s act?

A- Preestablished categories: i) D created risk/ promoted or invited to a risky
event?
-No, a house party is not a risky event
ii) Is there a paternalistic relationship giving rise to a duty to supervise?
No, inapplicable, guests “do not park their autonomy at the
door”
iii) No public capacity interest for a social host
-No reliance on monitoring from anyone, or an expectation of it
Insufficient proximity no DOC
_____________________________________________________________________________________

Maguire v. Padt 2014 ONSC [D’s crash caused another while apprehended by cops; Liability
to rescuers is not ended by “end of peril” but only the “foreseeability of the rescuers actions”

D caused a first accident, which caused a second when D was already apprehended by
 29

police. Liable for injuries of second accident?

-D: The liability to a rescuer is limited to the time of peril which necessitated
an event in need of a rescuer. Once the danger, the motivating cause of the
rescuer, is over, the liability towards them is also over.
At the time of the 2nd accident it was not an event caused by D, but an
investigation by police.

J: How is the rescuer, in the midst of confusion and shock,

supposed to know that the time of peril has passed and he
is now no longer protected from liability?

-“It is an invitation to the rescuer to watch out for the

time when his or her actions will be governed by his or her personal
interest and not the generosity to others the rescue doctrine is intended
to encourage.”

“In other words, it is the foreseeability of the actions of a rescuer that are
the source of the liability owed to the rescuer by the party creating the
peril.”
Policy consideration: To my mind, the position taken on behalf of Suzanne Padt and Robert
Padt would sensitize rescuers to the risk they are taking, detract from the intuitive desire
to respond to cries of distress and return us to a time when people were less inclined to
help.

Decision: As it is, the rescue was not over. They continue to bear liability for the injuries
suffered by the three individuals that were struck by the vehicle involved in the second
accident
_____________________________________________________________________________________

Jane Doe v. Metropolitan Toronto Comm. Of Police 1998 OJ [Duty to warn [from a public
body to individual] derived from interactional proximity and statutory duty]

P was raped by a serial rapist. Police knew about and were investigating this rapist. P sues
police for negligently failing to warn/protect her.

-Police were aware of the danger, made a decision not to warn.

-Their reason (found not credible): If we publicly warned, it would displace the rapist
-Real reason: Because they thought the women would get hysterical and
jeopardize the investigation
 30

DOC?
s.57 of Police Act RSO 1980 c.38: Police have a duty to prevent crimes and protect the public.
 Duty to protect her existed, but what about the private law duty to warn?

DOC test:
1. Was the injury that occurred a reasonably foreseeable consequence of D’s act?
Was it reasonably foreseeable that P’s class would get raped as a result of the
police’s failure to warn of a serial rapist?
Police knew his patterns and history; P fit a probable victim profile based on
where she lives and where he strikes, i.e. that complex of apartment buildings in
that area.  Proximity exists and reasonably foreseeable
P: I was used as sacrificial bait
J: If warning was so bad, you could have done it in other ways, not necessarily
publicly.
-Even if no duty to warn, still a duty to protect, maybe not through a warning,
but through some means.  DOC exists
_____________________________________________________________________________________

Duty of Care Owed to a rescuer (Previous was Duty to Rescue)

Horsley v. MacLaren 1972 SCC [Other ‘hero’ in PC yachy party; Unless rescuer neg. created
the original danger, no duty to rescue unless the 1st attempt to rescue was so neg. it induced a
2nd rescuer by creating a new danger. Not found here.]
P is estate of Horsley, the guy who jumped in to save Matthews after/while D’s attempt to
rescue (which he was found in a DOC, and breached the SOC, but was not liable because no
causation-inevitable death)

P: P’s death caused by D’s negligence in saving Matthews, which could reasonably foresee P
jumping in after.

-DOC owed as carrier to passenger

-Canada Shipping Act s.526(1) (now s.451)
-D’s negligence induced P to jump in  he is liable
Majority: No negligence in rescuing Horsley,
-Videan v. British Transport Co.; L. Denning: ‘if the danger is D’s fault  owes a
duty”
D must create a new, 2nd danger that caused P to jump in.
-But since trial found his rescue attempt in the 1st case was negligent due to an error in
judgement, which is not sufficiently negligent for him to create new danger thereby
 No liability
 31

Dissent: Liability to the rescuer is not a derivative of negligence, but independent from it.
-Liability arises from foreseeability; the foreseeability of the involvement of a second
rescuer alone, not from a factor of the extent D was negligent in the rescue.
-As such, even Matthews could be liable to the rescuers from his fall
-i.e. you could be held responsible for the damages caused by a situation you
caused which led to a rescuer getting involved and during which he was
injured.

Duties owed to the Unborn:

*Essentially a common-law duty exclusively; legally not a person until 5 y/o.
_____________________________________________________________________________________

Pre-conception wrongs:
-When D causes injury to P before conception that causes harm to born child.
-Difficult causation issue; everything can be a cause.

UAW v. Johnson Controls 1991 US [Forced sterilization of battery factory employees;

individuals have choice of bearing risk, can’t force risk avoidance]

P were employees of a battery factory owned by D. Fearing liability, knowing that working
there exposes one to chemicals that cause birth defects, required women under 70 y.o be
sterilized.

Ruled by US Supreme Court for P; found discriminatory against women and their right of
choice whether to be exposed to that risk or not.
_____________________________________________________________________________________

Wrongful Birth
D’s negligent act (failed sterilization, inform of birth defects, etc.) led to a wrongful birth
(instead of what would have been an abortion) of a (if disabled its worse) child

McKay v. Essex 1982 UK

- A mother and child claimed that a doctor not issuing abortion advice when a serious
disability is diagnosed during pregnancy deserved recompense
 A child cannot claim that they would rather not be alive. (i.e. right not to be born) +
The doctor was under no legal obligation to terminate the foetus’ life during pregnancy
 no liability
 32

Wrongful Life (brought by the child, not the parent)

If brought forth by a child  “wrongful life”
-Very difficult, essentially claiming that P would rather be dead;
-Notwithstanding policy considerations of moral sanctity of life,
technically difficult to assess because have to compare value of
non- existence to value of living with disability

Generally child should be born disabled, otherwise a healthy child may be seen as a
“blessing”
-There are exceptions, such as the case where a financially strained family had a
wrongful birth
_____________________________________________________________________________________

Wrongful Pregnancy
Due to D’s neg., an intended avoided pregnancy occurs.
-Failed sterilization, faulty birth control
-Complexity depends on whether there ultimately is a birth. Commonly it goes:
1-If born healthy  no damages
2-If born disabled (due to D’s neg.) 
a-immediate expenses, no upkeep
b-above plus cost of upkeep and extra cost of raising disabled child
c-above plus full upkeep (not just extra costs from disability) until age of self-
sufficiency---------------most common
d-Full damages w/ no discounts

Prenatal Injuries (most common)

P suing for damages sustained while in uterus that resulted in birth complications
-D’s carless neg.  injury to pregnant women born with disability
But child not a legal person until 5 y/o
_____________________________________________________________________________________

Paxton v Ramji 2008 ONCA [Acne drugs by prego  disabled kid; Dr. only owes DoC to
mom, not in-utero infant]
P, an infant, was disabled because mom took acne drug that is known to cause birth defects
in pregnant women. Sues doctor for failure to advise for extra birth control.
D: Didn’t expect P to get pregnant as her husband had a vasectomy  not reasonably
foreseeable
J: DOC? From the Dr. (D) to the future child (now P)?
-Although the harm is foreseeable and a prima facie case exists, there is policy
reason to limit the liability here:
-Dr’s only DOC is to the patient, not to the patient’s in utera child.
 33

If it was, the Dr. would change his treatment being mindful of any
potential effects on potential pregnancies which would
alter his treatment of P violation of P’s right to her body
no liability
_____________________________________________________________________________________

Dobson v. Dobson 1999 SCC [In-utero infant sues his mom for insurance purposes; No DoC
between mom and her in-utero child.]

P is an infant, suing his mom, D, for insurance purposes. D was pregnant with P when she
negligently caused an accident, harming P in utero.

-Requires a DOC to be found between a mother and her in utero child.

-Trial courts found in favour of it; got appealed to here, SCC
Majority:
Applying Anns/Kamloops Reasonably Foreseeable? Yes, baby inside, crash, injury.
Proximate? Yes, couldn’t be more close of a relationship. Prima facie DOC exists
B-Policy considerations?
Impossible to find a DOC between a mother and her unborn child.
-The baby is %100 dependent on the mother; everything she does can be a
liability
-Tortious v. non-tortious causes in this context?
-Bad diet?
-Subject to public legal scrutiny
-Intrusions into right to body, privacy
-Psychological, emotional, familial harmin nobody’s
interestsNo DOC
-Since this is a matter of insurance, should be dealt with by legislation without imposing
a DOC on a mom to her unborn child.

Dissent: Agrees with conclusion in this case, but disagrees on the possibility of imposing
liability on mothers for their unborn.
-Would be a very limited liability, one that treats the fetus as a third-party, i.e. as any
other user of the highway which is afforded protection from negligence.
_____________________________________________________________________________________

Alberta Maternal Tort Liability Act S.A. 2005 [A very limited legis. Attempt to solve Dobson
mom-infant DoC issue]

Use or operation of automobile

4) A mother may be liable to her child for injuries suffered by her
 34

child on or after birth that were caused by the mother’s use or

operation of an automobile during her pregnancy if, at the time of
that use or operation, the mother was insured under a contract of
automobile insurance evidenced by a motor vehicle liability policy.

Limit of liability
5(1) A mother’s liability under section 4 is limited to the amount
of insurance money payable under contracts of automobile
insurance indemnifying the mother that the child can recover as a
creditor under section 579 of the Insurance Act
_____________________________________________________________________________________

Leibig v. Guelph General Hospital 2010 ONCA [P claimed her baby injured during delivery;
during delivery =/= pre-conception; midwives are liable for neg.]

P born disabled, sues D for neg. delivery, and treatment before delivery, which caused
disability.
DOC? Of Hospital to Baby?
D: Cited Paxton v. Ramji; No liability was found for the baby in utero. no DOC
J: That is distinguished because here the negligence claimed is at the time of
birth, not exclusively before that time.
-This is a delivery case, not a preconception wrong case. Negligence in delivery
cases is well established; there is liability for negligent midwives.
 Appeal dismissed; for P.  Liability found

Psychiatric Harm DoC

Mustapha v. Culligan of Canada Ltd. 2006 ONCA [Fly in water; need reasonable person of
“normal fortitude” would suffer some type of psych. harm]
P suing D for giving him a water jug with a fly in it. P suffered psychological distress treatment and
disruption of employment
P had particular sensibilities; trial awarded him; D appealed.
D: Concede to DOC but the injury was not a RF type
-@ ONCA (here): P: Primary v Secondary victim distinction where the former there is no r
equired RF type
-Primary = present, direct; secondary = removed, indirect
The fly in the water = a physical harm that is RF
J: This is not Cdn law; its an arbitrary distinction, P didn’t drink any water so he could be said to be both
primary and secondary anyways.
 35

Still require a RF type of injury (Wagon Mound 1/2)

-Thin Skull Doctrine is only a principle of extent of liability, a measure of quantum; not in
itself capable of establishing liability but only for extending it once established.
Using an Ann’s test Proximity found; RF? The test is whether a person of “normal fortitude”
is likely to suffer from some type of psych harm as a consequence of D’s action.
No a normal person would not have; the TJ erred in considering only subjective
considerations not objective considerations.
And TJ used possibility not probability. Needs to be probable, tort law isn’t insurance.
Need person of ordinary fortitude 1st then D takes P as he finds him
-If D had actual knowledge the ordinary fortitude test would be relaxed; he didn’t = not
RF Appeal dismissed
Upheld in 2008 SCC; found established category as manuf-buyer relationship

Saadati v. Moorhead 2017 SCC [Personality change from crash; Doesn’t have to be medically
recognized, but a serious and prolonged disruption/psych damage, visible.]
P suing for psych damage for accident  personality change and damage
-Not an expert recognised mental illness; Is this necessary?
-No; this is misguided policy based on idea that its easy to fake; but this is for the trier of fact to
decide
-From Mustapha; to avoid causing psych harm is RF
Still, required to show actual damage; what the symptoms represent, not necessarily
a whether a label can be attached to them; medical witnesses helpful but not
required; just needs to be a serious and prolonged disruption and not just an
emotional upset
present here appeal allowed

The Standard of Care

Factors to consider:
-(probability of injury + gravity (potential severity) of injury)
BALANCED AGAINST
- Burden of adequate precaution = ((private, social costs of avoiding risk) + (social utility of
D’s conduct))
 36

-----AT TIME OF BREACH, NOT IN HINDSIGHT---

_____________________________________________________________________________________

Arland v. Taylor 1955 ONCA [P hurt in bike crash; Est Reasonable Person
test for SoC]

P was in motorcycle accident. D breached standard of care.

Issue: What is the reasonable persons test?

- To determine the standard of care, courts must consider the care that would’ve been taken in
the circumstances by a “reasonable and prudent man”
o He is a regular normal man that acts based on societal norms
o The standard changes from time to time, and place to place
-A non-tortious mistake under a reasonable person  error of judgement  actionable carelessness
_____________________________________________________________________________________

U.S. v. Carroll Towing Co. 1947 [D took 21 hr. break from ship; Liability = B < (PxL); if B >
(PxL): b= burden, p = %of injury. L = gravity of injuryto det if SoC breached]
Ship got loose from dock and hit other ships. Nobody was on board, guarding it.

-Liability for negligence is a function of the burden of adequate prevention (B), the probability of (P)
injury, and the gravity of injury (L)  Liability = B < (PxL); if B > (PxL) burden exceeds the harm
-No sufficient justification given for the 21 hour absence from the ship.
-Custom of attendee shifts doesn’t include such long breaks
-Failed to tie the boat down properly
-Increased activity at dock due to war time
unreasonableliability found
-Serves a social, and economic purpose, giving an economic incentive to prevent injury if it
economically efficient in the macro.
-Is the Reasonable Man a Utility Maximizing Rational one?

_____________________________________________________________________________________

Bolton v Stone 1952 HL AC [Cricket ball hits P; D can disregard risk if suff. small; if %
occurrence is low but gravity is high may justify finding breach of SoC]
Cricket ball from D’s yard flew over and hit P as walking down street.

For a DOC to exist, must the harm be substantial, or just reasonably foreseeable?
even if 1 ball a year, if it has happened in the past  RF
What about the facts that:
 37

-Maybe 6 balls fly over a year

-No unusually high traffic on street where P was hit
These used to indicate the degree of RF risk
A) Probability of Injury:
Rule: Men generally disregard risks ONLY if they are extremely small
-Not foreseeable that an accident might happen during a cricket matchif
based on RF alone, maybe no liability

Gives more weight to the second requirement, potential gravity of injury regardless of chance
its not just probability of injury that matters
 Probability is extremely low, but severity is extremely high

3. Burden of adequate precaution:

o if its too risky to play the game in area given the degree of risk, then we shouldn’t play in that
area; not all risks are avoided by the reasonable person, only the substantial ones.
Apply Reasonable Person test to weigh the 3 factors:
-Cannot expect that a reasonable person would not play there given the low risk
Appeal allowed, for D.
_____________________________________________________________________________________

Paris v. Stepney Borough Council 1951 HL AC [One eyed worker now blind; Even if % of
occurrence is low, if gravity is high and burden is low can = breach of SoC]

P is one-eyed worker, working D’s factory. He was injured, now he’s blind. Sues D for neg. failing to
take precautions.
DOC establish through employer-employee relationship
P: His one-eyed nature was known to D
Using the reasonable person test:
-His eye was close to the work being conducted and not goggles were worn
-Although probability is low, gravity is high
-Burden is low; all that is needed are goggles
 SOC breached for P

Dissent: If two are at the same probability of risk, but one differs in the gravity of risk because of his
nature, this does not justify a change in the standard of care
-SOC should be more broad, categorical
-The risk of any eye injury is small, and serious injury even smaller; that’s why they don’t give
out goggles
Either D is neg. for failing to provide goggles for all  but no custom of this rejected
Or: Risk of such injury is too remote to be considered RF.
cannot be only the one eyed man can recover
_____________________________________________________________________________________
 38

Vaughan v. Halifax-Dartmouth Bridge Comm. 1961[Dripping paint from bridge; If

precautions are feasible = low burden of precaution, high likelihood of occurrence breach
of SoC]

D painted a bridge, the paint dripped on P’s car damaging it. P sues.
P: The burden of adequate precaution would have been too high: all in this X km radius at X wind
speed, etc.
J: Only one affected parking lot in question
-Where was the warning policy at least? Radio, posters, word of mouth, even a single
employee to sit and wipe off the paint
-The fact that at one point a complainant went to the security and complained, and he
was able to move his car  shows feasibility of precaution (+ low burden)
 Negligence found (SOC breached)
_____________________________________________________________________________________

Law Estate v. Simice 1994 BCSC [One more CT-scan; Burden of adequate precaution must
prioritize immediate threat to physical injury before costs/financial concerns]
P’s husband died in hospital awaiting treatment. Sues hospital Dr. for negligent failure to provide CT
scan which could’ve prevented his death.
D: Working under financial and resource restraintscouldn’t offer CT scan at the time
J: Decision between one more CT scan and the associated costs on the health care system or life of
patientlife of patient
-Severity of harm to patient > severity of harm to medi-care from 1 more CT scan
D is liable; for P
-What about role of court and its limits in discretion of hospital resource allocation decision?
-What if that one more CT scan was being used to save someone else?
_____________________________________________________________________________________

Watt v. Hertfordshire County Council 1954 ONCA [Firefighter hurt by jack; If high social
burden of adequate precaution justifies a breach of SoC]
P a fireman, was injured while responding to an emergency call by a jack that was placed in the truck
negligently. P sues the fire department.

P: Jack was negligently placed, should’ve had special accessory, in special truck, not as close to him,
lack of supervision, and forcing him into the truck
J: Liability = B >/< (PL) here the burden is a social one
-If it were a commercial business, P would’ve succeeded, but this is a public service
-The burden of delay until a everything is safe could cost the lives of people in a
burning building.  Justifies the risk he is being placed in.
-Should still be a balance, i.e. a firetruck should not zoom past a red light if unsafe
Dismissed, no liability
_____________________________________________________________________________________
 39

Special SoC:
For the disabled:
Fiala v. Cechmenek 2001 Alta. Ca [Crazy guy on car; If D is mentally disabled  modify
reasonable person to take account of capacity to understand DoC and control over actions @
time of eventonus on D to est. as a defence]

D a manic, he didn’t know about his condition before. Had an episode where he caused X to crash
into P.

How to apply reasonable person test?

P: -As usual: Torts is compensatory and not punitive
Cannot allow a victim to go unrecompensed; violates goal of torts
Inability to differ between real and feigned mental disability
Would encourage caregivers to take extra precautions for the disabled
If mentally ill are immune to liabilitypeople will avoid themisolation
To not apply it would erode the objective standard

J: What P is trying to do is implicitly remove the necessary element of fault

There must be culpability (moral, corrective justice torts vs. amoral, compensatory,
distributive justice torts)
Don’t have to abandon reasonable person test, just modify it as modifications exist
for children and the physically disabled  what would the reasonable mentally
disabled person of the same condition and experience have done
But first can there be a DOC?
D needs to have capacity to understand this duty
D needs to be in meaningful control of his actions at the time he had to discharge his
DOC
The onus is on D to establish these in his favour in order to relax his liability
If we find D liable without these liable without fault de facto strict liability regime
D relieved of liability
_____________________________________________________________________________________

SoC of Children
Joyal v. Barsby 1965 ManCa [Girl crossing street; Modify reasonable person test to child of
like age, experience, and intelligence]
P a child, walked into street and hit by D, driving a car. D claims contributory negligence.

Reasonable Person Test here: The reasonable child of like age, intelligence, and experience (i.e. P is
rural kid, v. that of city kidthese distinctions would not be a strong for adults, more subjectivity
here.)
-P was educated in road safety, understood dangers of road
-Before she got hit, she was going to cross the first time but changed her mind when a large truck
approaching had honked his horn
 40

-After the honk she continued crossing, but D was immediately following the truck.
-D had seen her at side of street as he was approaching, so he slowed down by taking
his foot off the accelerator but not applying the brakes
D: The horn of the truck shows that she understands the danger  capable of
contributory negligence
P: The horn distracted her, a normal reaction for a girl of like age,…
Reasonableno contributory negligence D is liable
Dissent: She was cont. neg. despite her experience and education.
P is 40% neg; recover 60% from D.
_____________________________________________________________________________________

SoC of Professionals + Custom

White v. Turner 1981 ON HC [Faulty boob-job; Judge prof. conduct by industry standard.]

P suffered post-op complications afters a boob-job. Sues D (Dr.) faulty crappy operation.

P must establish that the op. was done in a substandard way from the view of a reasonable boob
surgeon + causation
 The standard depends on the custom of the professional/ industry standard
P: 3 counts of negligence alleged: 1-Type of procedure chosen, 2-Insufficient planning
both rejected

3-Concenring the actual execution of the op. D removed insufficient amount of tissue =
negligence for 2 reasons:

a-op. done too fast

-Expert evidence: Usually op. should take 2-4 hours.

-Took 1hr35min.  too fast compared to the standard

shorter time to do operation = more chance to moss something such as sufficient tissue
removal  greater risk of complications  yes negligence

b-Dr. continued op. without proper check if enough tissue was removed

-Not all doctors do, not necessary

-But, he admitted: 1) He didn’t know about this standard

2) He didn’t follow it, although

3) He noticed more tension than usual in area but didn’t

do anything about it.

-His notes say he removed 800gr., but only

705gr.
 41

-Correcting Dr. had to remove another 350gr. =

50%  no small error in judgement but
probably due to the negligent
quickness

Holding for P; D was negligent

_____________________________________________________________________________________

Ter Neuzen v. Korn 1995 SCC [HIV from artif. Insem.; 1. If industry standard is obviously
wrong it may fall short of SoC, 2. Judge industry standard by the tech. knowledge @ time of
tort, 3. Judge the prof. with an obj. custom standard but take account his level of specialized
skill]
P got HIV from artificial insemination by D (Dr.).

D: This was the standard at the time

P:But the standard itself falls short of the SoC

To assess standard of care of doctors: Reasonable Doctor Test with Custom focus

-At the time of the insemination the risk of infection through AI was not known

The doctor had adopted the STANDARD medical practice at the time

He had followed the customs and what another reasonable doctor would

-Jury said that was negligent.

-Cant decide what is negligent since we are not part of their profession (see
below)

-Base the actions of the D off a specialist to the same degree as the D with a degree of
skill of an AVERAGE specialist in his field

-If there are competing theories in the field of the doctor, we will not hold him liable if
his diagnosis and treatment given are recognized by science at the time

-General Rule that courts can take to assess the actions of reasonable doctors: for
difficult medical questions, we cannot assess if the STANDARD medical practice
was negligent

-EXCEPTION: However, we can rule where the matters fall in the ordinary common
sense, that any reasonable person would obviously think should’ve been done
to avoid risk

J: Should be judged by knowledge possessed at the time, otherwise it’s anachronistic

biasNo liability
 42

_____________________________________________________________________________________

Girard v General Hospital of Port Arthur 1998 ON [Patient gait exam falls; The custom of the
industry is hard to replace expert SoC with judge SoC]
P was undergoing a gait exam by D (Dr.). Fell while doing so and injuredsues Dr. for neg.

-Expert evidence: D was acting reasonable/ following the standard of the industry

-P: Nothing in P’s condition/history would give rise to suspected risk of fall

-Trial Judge: It was an obvious risk that there should have been a nurse presentfound liability
(which is appealed here).

-Appeal J: Not open for the judge to judge on a medical standard

-Trial J is replacing professional judgement of Dr. with his own knowledge/info. About
patient (meanwhile Dr. probably knows better than you or P).

No liability found (dismissed)

_____________________________________________________________________________________

Resurfice Corp. v. Hanke 2007 ONSC [Zamboni driver puts gas in water tank; even if injury
is very grave; if very NOT RF (i.e. dumb mistake)  no breach of SoC]
P is a Zamboni driver; mistakenly put hot water in gas tank  explosion and severely injured
himselfsues D for neg. design.

P: The gas and water tanks look too alike and placed too close together

-Other workers made the same error before

-Trial judge: No liability or neg. found; there was no foreseeability and no causation

-P was not confused, he just made a mistake = his fault

-Appeal Court: Overturned trial court because:

-Trial judge erred in assessing foreseeability and causation

-on Foreseeability: Should’ve considered policy and had more emphasis on certain
evidence of D ( experts)

-Superior Court: Overturned appeal court (restored Trial judgement)

-Appeal can only interfere if there is a palpable and overriding error, which there was
not any in the trial judge’s reasoning

-He doesn’t have to consider all the evidence if it is not necessary for him to
come to a conclusion
 43

-Do not have to consider policy or seriousness of injury when determining

foreseeability

_____________________________________________________________________________________

Causation in Fact [P must est. D rebut.]

-Use “But-For” Test to establish causation, and a balance of probabilities; i.e. more likely than not that
but-for D’s negligence, P would not have been injured.

-P must prove causation; D rebut it (say he was not a cause, or a very remote one)

-Need to focus on each separate tort separately

Divisible v Indivisible Tort (former = can be sep. attributed; latter can’t)

-Divisible tort: Can be attributed to more than one tortfeaser (2 or more Ds);

 capable of being separated out and having their damages assessed independently

-Indivisible tort: Can not be attributed to more than one tortfeaser (one D);

cannot be separated or have liability attributed to the constituent causes

Contributory Negligence: May be used as a defence by D; infers P is also a cause to his injury

-Does not have to be THE cause, but enough if it is A cause (could just be a contributing factor).

-But, remoteness would be considered which may discount a small factor

Independent v Joint Tortfeasers

A) Independent Tortfeasor: = Liable only for injuries that person caused only
B) Joint Tortfeasor:
Nowlan case
Liable for the torts committed by a fellow joint tortfeasor, even if she did not cause the loss
of the P
-If joint, we only need to prove that 1 person was negligent, and then we
automatically blame the other person
-Cook v. Lewis (below) case identifies 3 categories of cases where individuals will be
held to JOINT TORTFEASORS:
1. Person committing a tort while acting on behalf of someone
2. Employees committing a tort in the course of employment
 44

3. Two or more individuals acting in concert to bring about a common end that is EITHER:
a) illegal
b) one in which negligence can be anticipated
c) something inherently dangerous
3. How to determine if action was a cause?
a) Requirements to Prove Causation by P:
 P does NOT need to prove that the d’s negligence was the only
immediate, direct, or even the most important cause of his loss
 The P only needs to establish that the D’s negligence was a
cause
 P is also NOT required to prove certainty or beyond a reasonable
doubt
i) ONLY establish causation based on a BALANCE OF
PROBABILITIES

Multiple Causes (Just need to be “a” cause)

b) Apply 1 Test to Determine Causation
A) But-for Test
-3 Exception Tests to the But-for Test, but still from a but-for Focus
-Multiple Negligent Defendants Rule Test
o **ONLY USED IF 2 defendants, if more
than 2, then use the material increased
risk of injury below
o This is used in cases where there are
multiple negligent d’s and they all
contributed to an injury
o The burden of proof to both D’s to prove
not fault
o Cook v. Lewis (below)
-The Learned Intermediary Rule Test:
 Rule: Manufacturers of products that are
not directly available to public may
discharge their duty to inform consumers
of risks AS LONG AS THEY adequately
disclosing info to a learned intermediary
(doctor, etc)
-Informed Consent Test:
 Healthcare professionals have a duty to
put patients in a position to make
 45

informed decisions about whether to

consent to a proposed treatment
 C) Material Contribution Test (both same test, just injury/risk):
- A) Materially Increased Risk of Injury Test
o Used in 2 types of situations
 A) 2 tortfeasors, for less, use multiple
negligent rule above
 B) same as material contribution, except
more of a risk focus
 Ex) used for when doctors increase
risk, etc
o 4. If multiple d’s and we have a case where we can divide liabilities, we can
use: Proportionate Approach and Loss of Chance Test
o If the loss was caused by multiple OR overlapping injuries in a series of
incidents (successive causes):
 a) A tortfeasors liability will be reduced to reflect the p’s pre-existing
injuries or disabilities, whether they were naturally occurring,
innocently caused, or a result of a tort (since not getting to damages,
assess it here)
 Thin Skull and Crumbling Skull:
i) These are based on vulnerabilities BEFORE THE TORT (if
you have vulnerability AFTER the tort, apply it as a
successive parallel injury)
ii) This is based on principle “take your victim as you find
him”
iii) Crumbling Skull cases (P was doomed anyway; D’s act
just accelerated it)
iv) Thin Skull: (P wasn’t doomed, just more vulnerable; but
for D’s neg., with proper care P could avoid harm.)
 b) Successive Parallel Injury: Analyze the extent of an original
tortfeasor’s liability when the P suffers an independent successive
parallel injury before trial on the first injury
o . What is the original position of the P before injury? Return to that position.
 tortfeasor is responsible for damages caused to p based on the original
condition of P based on the moment in time
 if he was In bad shape, you only pay damages up to that

Step 1(B). Multiple Causes

- If we have multiple causes to 1 loss, we must use either:
- A) independent insufficient causes:
o Several factors combine to cause P’s loss
o All the factors are necessary, as the loss would not have occurred without
them all combined - ALL FACTORS needed to make the loss
 46

o Athey v. Leonati and Nowlan v. Brunswick (below)

- b) Independent Sufficient Causes
o When indivisible loss results from 2 or more sufficient causes – the acts of
each of these is ENOUGH to cause damage
 Ex) 2 people shoot at 1 person and causes two separate effects and
both these things cause damage or loss
o Under but-for test, each tortfeasor would be absolved of liability because
the P would’ve suffered the same loss regardless of any individual
tortfeasors negligence
_____________________________________________________________________________________

But-For test:
The injury would not have occurred but for D’s negligence.

Kauffman v TTC 1959 ONCA [Handrails of TTC; If no evidence of but-for on b.o.p. no

material causation]
P, and others, fall on each other on a escalator in TTC stationsues TTC for improper handrail = neg.
cause of her injury.

-Trial: D was negligent for using a new type of handrail without sufficient testing before implementation

-Usually Appeals don’t interfere with a trial’s findings of fact; but here the facts he found concerning the
handrails were deemed to be irrelevant because

-No evidence of causation was adduced by P

-Is it more likely than not that but for the specific type of handrail, would injury have not
occurred?

-The test is speculative by necessity, but this balanced out by the B.O.P.

unlikely on a B.O.P., but certainty not needed

_____________________________________________________________________________________

Barnett v. Chelsea & Kensington Hospital Mgmt Cttee., 1969 QB [Poisoned Tea; If
death/injury/loss would’ve occurred anyways  no but-for causation]
P drank tea poisoned with arsenic (he didn’t know); went to D (Dr.) complaining of stomach ache. Was
sent home to sleep it off. P died.

-But for Dr’s failure to treat  death?

-Breach of SoC in failure to treat was established; but need to connect this breach with actual loss

-P, more probably than not, would’ve died anyways; not enough time to help him even if Dr.
took him in right away
 47

 No liability

_____________________________________________________________________________________

Established modifications/exceptions to the But-For test:

MULTIPLE NEGLIGENT DEFENDERS: (Only 2 Ds; if more than 2 

Material contribution)
(Cook v. Lewis); If known that one of 2 tortfeasers both in breach of SoC actually caused the harm, but
impossible to tell which particular one  both may be held liable and left to disprove their element of
causation between themselves.

Learned Intermediary Rule

For manufactured products not directly available to the public (like prescription drugs) but through a
mediator (like a Dr.); can discharge its liability upon the intermediary who should inform consumers.

Informed Consent:
Dr. must inform patients of risk before getting their consent

-In case of breach; P still must prove that failure to inform  would change whether you
would’ve consented  would’ve prevented your loss
 Problem of subjectivity and hindsight in saying I would not have
consentedmodified objective test by instead asking:
-Would a reasonable person in P’s position have consented?

Material Contribution to injury:

Did the D’s conduct materially contribute to P’s injury in a more than insignificant way?
_____________________________________________________________________________________

Walker Estate v. York-Finch General Hospital 2001 SCC [Tainted blood transfusions; If but-
for is unworkable cuz of multiple independent causes to single harm ask did D’s conduct
materially contribute to P’s loss/injury?)

Several Ps, tainted with HIV infected blood; multiple Ds.

-D: No testing was done at the time

-P: But as info. And warnings got better the blood was still being donated
Causation issue: No established causation between D and the HIV infections
Donor would’ve still given blood even with the warnings (no but-for)
 48

@ Appeal: When D is proven neg. in its screening, the onus of disproving such falls upon it; it failed to
so do  liability was found

@ here in SCC: Reaffirms the general but-for test for causation, but when its unworkable (such as
here where there are multiple independent causes to a single harm) i.e. unfair for P (may go
uncompensated because of its impossibility)  Instead, ask:
Did the D’s conduct materially contribute to P’s injury in a more than insignificant way?
-P still carries the burden of proof of causation, but need only prove a material contribution
-But, you can still use the but-for test here; “but for the warning would the donor still have given
blood?”
 causation established in this case because in its view on evidence, this donor wouldn’t have
given blood if he got info about taintedness
_____________________________________________________________________________________

Materially Increased Risk of Injury

McGhee v. National Coal Board 1972 HOL UK [Dust to dermatitis; If impossible to prove on
but-for due to multiple potential factorsP must show D’s neg act sig increased the risk of
the type of injury that actually befell him material causation].

P got dermatitis; he claims its because his work involves lots of dust/dirt and his employer doesn’t
provide showers; he stays in dirt longer until he gets home. Sues employer, D.
-P could not prove a but-for test on a b.o.p. that but for the showers  dermatitis
-Evidence shows that it’s not the only/ or even important cause
-But, if P can show that D’s neg. act significantly increased the risk of a certain type of
harm;  that same type of harm befell P  causation may be established.
-Since D was deemed to be a contributor to the risk  liable
Dissent: In such cases, the burden of proof should be reversed (reverse onus) so that there is
a prima facie assumption of causation and D must prove that it was not the cause
-But, D wont be able to either  liability
-Same result as majority, but different process
_____________________________________________________________________________________

Snell v Farrel 1990 SCC [Bad eye-op; 1.Even if other possible causes are natural, P must
prove material contribution to risk; 2. When impossible to prove this because of D’s
acts/knowledge/positionrelaxed standard for but-for]

P had an eye operation; post-op complications caused him blindness sues D (Dr.)
-The D admits he noticed discoloration in eye during op. but continued
J: D breached SoC when continuing; must prove this neg.  blindness.
P: This was the causeblindness
D: A possible cause yes, but other possible causes could’ve occurred naturally
 49

-Does P have to prove causation in medical malpractice suit in accordance to traditional “but-for”
principle?
On the burden of proof’s allocation generally:
1-Not set in stone
2-Onus usually one the one who proceeds with the action (P)
3-But, if one party (D) has the exclusive knowledge of the possible contributing risks  the onus
is on them to prove/disprove it
-D that substantially contributed to risk of injury should not be immune to liability because
impossible to prove something with certainty
-Scientific proof not needed, only a “probably”
 P can succeed with much less of an argument; needs only “very little affirmative
evidence” to justify an adverse inference of causation (that D was the cause by
contributing).

What criteria give rise to a situation of adverse inference of causation?

1-Conflicting or insufficient expert evidence
2-When the facts determinative to an inference of causation lie particularly within the D
3-Where the practitioner creates a situation which makes it impossible for others to notice the
neg.
4-Where D is better able to observe complication as they arise.
No shift of burden of proof, but a relaxed standard of proof for causation claims

Here: P could not notice any bleeding during op.; only D could’ve.
-The situation is such that its impossible for other experts to come with conclusive idea of
causation because of D’s continuance of op.
_____________________________________________________________________________________

Nowlan v. Brunswick Const. Ltee. 1972 CA [But for your, and my, work-architect/contractor;
If multiple TF too entangled in time to tell or both are necessary (suff. when combined neg.)
 joint and severally liable (give P 100% then sort themselves out)]

D a contractor, built a house and the wood rotted = bad work.

D: But for the architect’s (some next guy) poor design  bad result
-Conversely, if D’s work was fine, the architect’s poor design wouldn’t have mattered
A concurrent tort; too entangled in time of occurrence to delineate attribution; but cant let
tortfeasers slip away Both are joint and severally liable
Discount liability between themselves

In common law, usually no apportionment of damages, but now due to statutes they can be found
liable to the extent they contributed.
_____________________________________________________________________________________
 50

Athey v. Leonati 1996 SCC [P with predisposition got hernia from accident; If D’s act is A
CAUSE, the necessary and actual presence of other non-tortious factors to lead to the injury
can still lend to finding causation. 2. Thin Skull.]

P got a hernia after an accident. He also had a predisposition.

D: Cannot establish causation on but-for testno liability

-P’s loss was result of combo. Of accident and predisposition; either on its own not enough.
-But, one is a tortious cause and one not (predisposition); apportionment?
J: If D’s neg. is a cause, then presence of other non-tortious factors do NOT affect the extent of his
liability; ie.  full liability
P must prove material contribution to injury  adverse inference of causation without
scientific proof
-Most events in the world are a result of complex cause sets; torts purpose is to restore P to his
original position before D’s neg. affected him
-Thin-Skull Rule: D is liable even if injury in unforeseeably severe due to predisposition in P
-Tortfeasor takes his victim as he finds him.
NOT Crumbling skull where D is doomed anyway (see below-Dillon)
Liability
_____________________________________________________________________________________

Dillon v. Twin State Gas and Elec. Co. 1932 [Boy falls off bridge grabs shocking wire; If P
would’ve died anyways, presence of D’s neg is negated as a material cause.]

P a young boy, climbing a bridge, falls off and grabs wire for stability, gets shocked and dies.

D: P would’ve died anyways from the fall, or at least not had very long to live after and if he did he
would definitely have been disabled
-his life would be too short to award pecuniary damages (raise question of value of his
life in injured position)
-The fall was the cause of death, not the wire; if no wire but still fell  his death without D’s
liability
-No liability for the cause of death,
-But, maybe able to claim for manner of death, pain/suffering incurred from the
shock

_____________________________________________________________________________________
 51

Penner v. Mitchell 1978 CA [P won at court then got sick; 1. If TF1TF2: TF1 liable for full
(including TF2 ‘s caused losses). TF2 liable from his point on. 2. If TF1  NON-Tort 
subtract time off from non-tort from time of tort (TF1 NOT resp. for subsequent non-TF
causes to P.]
P had two losses, one after the other; one tortious and one not
-Was unable to work for 13 months after 1st tortious injury; then suffered from an unrelated
heart condition
3 of the 13 months he was off work were from the heart condition suffered AFTER the
tortious injury (unrelated);  10 of the 13 were from a tortious cause

-If 2 successive injuries; both tortious and the first leading up to the second one;
 the 1st tortfeaser is liable for all the damages; including those caused by the 2nd
tortfeaser
The 2nd tortfeaser is liable only for the extra damages beyond what the 1st
tortfeaser caused
BUT: IF P dies from 2nd tort; D1 may be eligible for reduced liability given that he has the
2nd tortfeaser to thank for reducing the amount of time D lived has to be less pecuniary
damages (less years of work = less money = less damage/fault = less liability)
- IF 2nd act of loss is non-tortious; should be taken into account or risk
overcompensating P
- Here: in any event, P would’ve missed 3 months of work due to the heart condition
(suffered after tort)
 3 months of earnings removed from the remedy of damages

_____________________________________________________________________________________

Cotrelle v. Gerrard 2003 ONCA [P diabetic got gangrene due to neg Dr.; IF found that
probable chance that D denied you through his neg (over %50) on but-for  material
causation to loss of chance to prevent harm]

P was a diabetic; went to Dr. (D), D referred her out; but before the referral she got gangrene
and an amputation of her leg.

-The diabetes clogged arteries  contributed to the infection  the Dr.s failing to treat 
gangrene and amputation
-Trail J: D breached SoC in failing to diagnose; and causation exists by denying her an
opportunity to fix it (LOSS of CHANCE to PREVENT harm caused by D’s neg.)
-@Appeal: Neither P nor D could say on a b.o.p. that if the infection was treated sooner

 no gangrene because its impossible to tell because of her diabetes precondition

 52

A but-for test is used here without modifications (i.e. not a materially contribute to risk)
because the cause is known = the infection; the question is:
-Whether D could’ve prevented the outcome.
-D: No (expert evidence), doesn’t matter what D did/ didn’t do
 No recovery for loss of chance if the chance was less than %50 (i.e. must be a
probable chance that D denied you through his neg.)

_____________________________________________________________________________________

Resurfice Corp. v. Hanke 2007 ONSC [Causation of poor zamboni design = explosion?;
1.Need substantial connection between neg. and injury, 2. Modify but-for only when:
impossible, clear breach, multiple (known?) causes, if impossible to tell if 3rd person would be
injured. 3.Stupid mistake/confusion may be more likely cause than neg. (would a 3rd person
suffer the same consequences?)

P mixed up gas and water tank; blamed D’s design.

-Did the D’s design (assumed neg.)  confusion  P’s injury?
But For test or modified?
-Because a substantial connection between the neg. and the harm is necessary
-When to modify But-For test into material contribution test:
1-When its impossible for P to prove causation for reasons beyond P’s control
2-It is clear that D breached a DOC to P by exposing P to risk of harm
-And that type of harm was the same harm the befell P
3-When it is impossible to tell which D caused the tort (multiple neg. D if 2;
material if more.)
4-If impossible to prove what a 3rd person would’ve done if D hadn’t been neg.

Give what the trial judge said, that the company is not responsible because of the but-for
test, he would’ve been hurt regardless since company is not at fault and he clearly hurt
himself
_____________________________________________________________________________________

Clements v. Clements 2012 SCC [Motorcycle mand and wife; use “but for test viewed
globally” instead of material contribution which is exceptional because it works by adverse
inference of causation only when impossible otherwise]

However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of
probabilities that any one of them in fact caused her injury. This is the impossibility of which Cook and the multiple
employer mesothelioma cases speak.”
 53

P a motorcycle passenger, D is her husband, driving. They crash, P is injured. Sues D (for
insurance purposes) for neg.

D was speeding = SoC was breached, but on causation:

-D (insurance co.): Tire puncture; not just D’s neg, if any  crash and injury
-P can’t prove causation on but-for; appeals, @ appeal used material cont. test no
liability found.
Appealed to SCC (here): Which test?
-Material contribution – substitutes proof of material contribution to risk
Allows them to jump the evidentiary gap (by adverse inference of causation)
But this ONLY applies where it is IMPOSSIBLE to say that a particular d’s negligent act
in fact caused the injury
It imposes liability because the act contributed to a risk that injury
would occur, not cause evidence proves this
It is rarely used, and justified only where it is required by
fairness

-Material contr. To risk of injury test is special exception;

-Used when impossible to determine which of many acts by many actors caused the
injury, but you know its one of them for sure
use “but-for test viewed globally” here:
But for all the causes  the outcome; each D who contributed = Liable

“[39] What then are the cases referring to when they say that it must be “impossible” to prove “but for” causation
as a precondition to a material contribution to risk approach? The answer emerges from the facts of the cases that
have adopted such an approach. Typically, there are a number of tortfeasors. All are at fault, and one or more has
in fact caused the plaintiff’s injury. The plaintiff would not have been injured “but for” their negligence, viewed
globally.

Remoteness
Where causation is concerned with the factual connection (but-for);
remoteness is concerned with legal causation.

Could have a factual causation but no legal

Cut off points in chains of causation can seem arbitrary because of policy considerations
limiting liability
 54

Directness Test:
Re Polemis…1921 [Dropped a plank, blew up the ship; To show injustice of old rule of
directness (liable if direct cause).

Directness as test for remoteness; if injury is direct result of breach = liable

-The case involved a ship worker who dropped a plank which caused a spark on a ship
carrying benzene which fumes ignited causing an explosion and damagewas
held liable because explosion was direct result of the breach (dropping the plank)

 [no consideration of degree of fault]

Foreseeability test replaced the directness test:

Wagon Mound 1…v Morts Docks and Engineering 1961 (Australia) [Oil
soaked deck/water to fire/damage; Even if but-for passed, the type of harm
was not a RF consequence of D’s (neg.) act.]
D carelessly let oil drip into dock water; P’s employees were welding, a piece of metal fell into the water
and sparked the oil soaked deck 1st then the water and then the boat.
-@Trial; not RF to D that the oil was flammable in water.
-Polemis Directness is unjust, can’t be held for all damages however unforeseeable; needs to be a RF
consequence of D’s act. [allows for consideration of moral blameworthiness].
appeal dismissed.

Difference between RF in DOC, SOC, and Remoteness

Progressively moves from general to particular.
DOC: Where it is RF that ANY kind of D’s acts can cause some kind of damage to any other person
SOC: Where it is RF that that particular kind of neg. D partook in [based on the obj. det. Reasonable
person standard] can cause some kind of damage to P.
Remoteness: Where it is RF that the particular act of D [in the context of the obj. det. But-for causation
chain] can cause the particular kind of damage to P [NOT THE EXTENTThin-Skull].
 55

Thin-Skull
Hughes v Lord Advocate [Oil lamp fell into open manhole; As long as the type of harm was a
RF consequence; the mechanism in which it occurred or the actual extent of damage from
that type = irrelevant.]
D’s employee left an oil lamp unattended next to an open manhole; lil boy dropped it in caused an
explosion, boy fell in and was burned.
D: It was not a RF type of injury
J: No, the kind of injury was RF, but the extent was not. Not necessary that extent of actual
injury be RF; only the general kind of injury.
There was a known source of danger (oil lamps, manhole); but the explosion (the manner in which
the danger occurred resulting in injuries) was not RF J: this doesn’t matter.
-The burning injury from the source of known danger was RF; just that it was caused by an
explosion was not Doesn’t matter; the type of injury was RF
-The manner in which the injury occurred if the elements = RF danger = irrelevant
Not too remote = liable

Smith v Leech Brain & Co. [P’s husband’s latent cancer was triggered by work injury; Est.
thin-skull doctrine; D liable for full extent of actual harm if the RF type of harm is what is
suffered].
P’s husband was a worker at a plant, a piece of metal burnt his lip causing cancer and his death.
-P had pre-condition which was initiated by this injury
DOC, SOC, causation est. Remoteness?
-This is a Think-skull case; the type of injury was RF; the extent was not, but D is liable for the full
extent [takes his victim as he finds him].

Thin-skull =/= crumbling skull; latter = doom is inevitable; instead of extending liability, the crumbling
skull limits liability by lowering damages because of hastening the inevitable consequence

Thin Wallet Rule

Traditionally rejected:

Dredger Liesbosch v Steamship Edison 1933 (UK HL) [P rented ship cuz too broke to afford
new one; No thin-wallet rule.]
P’s ship sunk due to D’s neg P is broke couldn’t replace right away  rented another ship in the
meantime and tried to claim cost of rentals  HOL J: No extra damages because you had a thin wallet.
 56

Alcoa Minerals of Jamaica v Broderick 2000 (Privy Council) [P being broke  waited on
repairs inflation led to higher damage $; Thin wallet rule may be allowed if harm is RF type
AND RF that P had a thin wallet]
P suffered nuisance damage from D; by the time was decided at trial, since P couldn’t afford to fix right
away, the cost of repairs due to inflation had risen a lot
In favour of P; no absolute rule against the Thin Wallet rule
 just use same test of RF to type of damage, where the reasonable person has a thin wallet like P.

Think Skull Pysch

Marconato v Franklin [P predisposed paranoid had personality change in accident; Thin
Skull applied to psych. cases too.]
P was in accident caused by D; caused her a personality change
-P had predisposition to paranoia
-D: The injuries are too remote;
J: Thin-Skull, referred to Smith v Leech D liable for all damages

Real Risk
Wagon Mound 2 [Where P is the boat owner, new facts; Question for legal causation is
whether it is a real risk NOT very likely; awareness of risk = real, even if exceptional)
Same incident as Wagon Mound 1; here the P was the owner of the damaged boats.
-@ Trial, neg damages were too remote = denied
-Q is not whether it is very likely outcome that the oil in the water could catch fire,
but whether it is a real risk; here it was acknowledged that this was a exceptional possibility .
The Ship engineer noticed the discharge, knew the risks; without excuse to justify inaction
 liable

Intervening Acts
 57

Assiniboine South School Division, No. 3 v. Greater Winnipeg Gas Co. [Snowmobile blows up
school; 1-(Intervening Act =/= past 3rd party neg; OR a contributing cause, but a new cause
altogether (need suff. Independence)); 2- if low RF type but high seriousness = more likely
liable]
D modified a snowmobile so his son can start it, but only in high gear, the son loses control, it moves
towards a school, hitting the gas pipe which was located next to an intake fan which sucked in fumes
into the boiler room next to the intake fan which ignited the fumes and caused an explosion.
DOC, SOC, causation found; remoteness = RF TYPE of injury?
-The fire and explosion is not RF, but the impact is
-But the extent and manner are not relevant
The chain of causation can be broken by a novus actus interveniens
-The neg placement of the gas co? Years ago?
J: No, not an intervening act; D still a cause among other contributing causes = he’s
still liablefather and son were joint tortfeasers
Liability of the gas co.:
-The placement of the gas pipes were neg.  RF type of damage [but probably in a different
more probable manner such as a cracked/broken pipe]
Weighing probable seriousness of injury and that of occurrence:
-Occurrence was low; but seriousness high; prevention had small cost/burden liable

Bradford v Kanellos [“GAS!” from noise; If the intervening act is RF = liable; if not RF 
no liability, successful break in chain of causation]
P were guests of restaurant; there was a fir in the grill, caused the fire extinguisher to go off causing a
sound some guest yelled “GAS LEAK”  panic  P injured. P sued D, restaurant.
Trial awarded based on neg. found in not cleaning the grill properly fire  chain of events.
@appeal: Reversed trial decision  not RF; the yelling = Novus actus = the direct cause; not the fire
Majority: @SCC agree with appeal reasoning; the panic was not fairly regarded as within the risk
created by D’s neg. Not liable
Dissent: The Novus actus itself was RF; the owners knew of the fire extinguisher and it noises  could
RF cause a panic, sounds like a gas leak  RF  Would allow the appeal
 58

Price v Milawski [Bad Dr.1 report  Dr.2  worse condition; The intervening act was RF
 turns into a contributing cause with accumulating effects of 1st TF neg.]
P broke his ankle, went to Dr.1 who misdiagnosed negligently; pain subsisted, Dr.1 referred P to Dr.2;
Dr.2 refused at request of P to order new x-ray, deferred to old Dr. x-ray, also misdiagnosed went to
Dr.3, found broken ankle permanent injuries.
@ Trial both Drs found equally neg.; affirmed @ appeal.
D (Dr.1): It was not RF; Dr. 2 was a novus actus
Referring to Bradford = “not within the risk created”
Here the novus intervenes itself was RF; Dr. 2’s neg compounded the 1st’s consequences.
Both are liable, open for apportionment.

Assessment of Damages
3 Categories: Nominal: No injuries, but need right vindication
Compensatory: Used to put P in pre-tort position.
Punitive: “Arrogant, high-handed or blatant disregard for P’s safety…”
-Kraft v Oshawa Gen. Hos.
 ”awarded only on rare occasions” denied punitive damages to P
injured by neg. surgeon (D) playing crosswords during op.

Principles in Assessing Damages:

Burden of Proof: [On P for type/quantum, b.o.p.]

On P for type and quantum of loss

Standard of Proof:
-For Pre-trial losses: Existence and quantum on a b.o.p.
-For post-trial losses: A) B.o.p. test that future loss would occur
B) (more recent) ‘substantial’ possibility test

Mitigation of damages:
-P expected to act reasonably in mitigation of losses (e.g.: Treatment, etc.)
1-P must take all reasonable steps to mitigate
2-P can recover for losses incurred in mitigating
3-P cannot recover for losses successfully avoided
 59

-Even if P was not mandated to mitigate some loss, if he did, D is not

responsible.

Janiak v Ippolito [“unreasonable” refusal to mitigate losses]: Surgery had

about 75% chance of success, many small chances of bad side effects, P’s refusal =
“unreasonable refusal to mitigate”.
-Pre-existing fear of surgery = not sufficient, unless you lack rational capacity
-Violation of thin-skull rule?

Set-offs for parallel expenditure: [For parallel, would’ve been spent any if tort wasn’t
committed, costs]
-Parallel expenditure: costs that would’ve been incurred even if tort not committed, like food
and general living costs = reduction for D

Lump-sum payment system: [One time, risk of over/under comp; no review/reassessment]

-One time award, no re-assessment in future = risk of over/under compensating because of
speculation
-Controversial, some argue for a periodic reassessment, or structured settlement period
payments.

Role of juries, judges, and appeal courts: [Jury role to assess quantum, J limited in guiding
except in special damages]
-If jury trial; jury’s resp. to assess quantum; limits on judicial guiding of juries except for special
awards (eg: pre-trial pecuniary loss)

Andrews v Grand & Toy Alberta Ltd. [1.Est Sep Heads > Global; 2.Heads of assessments w/
explanations; 3. “Reasonableness” of compensation; 4. Set-offs; 5. Tax/Interest; 5.Non-
pecuniary harm +limit ($100k)]
-Rejection of ‘global approach’ of giving one-sum of damages, and instead used ‘separate heads of
recovery’ approach:
-Review by appeals was hard; very low amounts; inconsistency; replaced with new system:
(1) Pecuniary loss
a-Future loss/care
b-Lost earning capacity
c-Considerations relevant to both a and b
(2) Non-pecuniary Loss
Here P was 20 something year old, quadriplegic in traffic accident; his employer (D) partially
liable.
-Appeal court should defer to trial court’s assessment except if obvious error in math or law
 60

-Problems with lump-sum system:

-Subject to inflation, interest, tax, new needs;
-The award is usually marked up for this
-Actuarial evidence neglects the individual sufferer
Assessments: (1) Pecuniary Loss: a- Future Care
-Duty to mitigate = duty to be reasonable, not settle for less than that.
-P wants costs of living in his own home with disability;
-D: This is extravagant, P should be given the cost of institutional care
-J: Home care is better for health, not unreasonable
-D: His mom can take care of him
-J: But not on an expected gratuitous basis, if she wants to, she will be compensated
-D, with Appeal: Use societal standards of wage expressed by Pension, EI, etc.
-J: Those are gov. provisions, we are seeking to compensate not simply provide
-D: Since it will be paid by insurance, his claiming such high costs = social burden by increased
rates on everyone
-J: negligible amount of burden, minimizing the burden should never compel choice of
the unacceptable but only if there are 2 acceptable alternatives
Statistics were used to estimate life expectancy, with 5 year deduction for his disability
20% contingency discount (for potential cost-savings, like time spent in hospital instead of paid-for
home)
Cost of special equipment for mobility awarded
b-Earnings: Salary: Used figure between his present salary and maximum salary for his type of work
Length of working life: Retirement age is 65; concluded that he would’ve likely took advantage
of early 55 full pension retirement.
Set-off for parallel expenditure: Food, clothing, etc incurred anyways, but the level of expense (due to
infirmity) changes the cost;  “percentage attributable to the necessities of a person in a normal state
should be reduced…”
c-Mixed a&b costs:
-Capitalization rate: allowance for interest and rate of return on investments
-What rate of return will P receive from investing the award? Future inflation decreasing
its value?
-T.J: Used present interest rate without accounting for inflation;
 61

SCC J: Wrong, need to consider inflation long-term, expect fluctuating

interest/inflation rates.
Used present rates of return on long-term investments and made allowances for
inflation
-Tax allowance: Was argued that no deduction should be made (on what P would’ve paid)
because what is being measured is lost earning capacity and not earnings.
-But P will still have to pay tax in the interest, dividends, or capital gains generated
from the award
But: Income Tax Act already remunerates P for medical expenses  not tax deduction/gross-
up
(2) Non-Pecuniary Losses:
-Problem of “no objective yardstick for measuring” things like happiness, grief, etc .
-“Bot” approach = attached monetary to human amenities lost objective of the victim
-“Personal” approach = measured value of lost amenity subjectively
-“Functional” approach; subjective, but instead of finding equivalent values, it attempts to
compensate to provide ”reasonable solace”;
=physical arrangements (beyond those directly relating to injuries) which make life endurable; still
arbitrary
-In Knutson v Farr, this approach on an unconscious person = no non-pecuniary awards
Awarded $100k as the upper limit for non-pecuniary damages

J Cassells, Remedies: The Law of Damages [Sexist, Racist Assumptions in Assessments]

Problems in assessing lost earning capacity:
-When evidence of earning history/trajectory is not available, lots of speculation
Children: Teno, young girl, gender and class-based assumptions rendered her a low award
Based on use of statistics; aggregates; in gendered, courts tend to gross up in hopes of a
narrower income wage gap in the future relative to men
-Marriage contingency, usually a gross up for men who tend to fair after marriage (
stabilizing effect) and a mark down for women because of their unpaid
household labour role
 62

Blackwater v Pint [P @ IRS molested, + pas abuse; 1.If damage was caused by prior TF,
subsequent TF should not be held liable for prior’s damage; 2. He who is in better position to
prevent to harm = bigger fault=carries bigger apportionment;3. if crumbling-skull  no
liability; 4. Look @ his fam. Job to see hypothet. job]
Prior abuse, multiple tortfeasors, and Athey principle (even if multiple causes, but-for est..
factual causation)
-Former student of IRS claim damages for sex abuse while at school.
@ Trial, Janitor was found liable, Canada too for ‘breach of non-delegable statutory duty’ and
the United Church through joint and vicarious liability with Canada  75% for Can., and 25% for
Church.
@ appeal, charitable immunity= church exempted
@ SCC, T.J. judgement restored CA set aside except for their award for loss of
future earning opportunity upheld.
-Canada in better position to prevent loss than church = higher liability
-Unequal apportionment of liability in cases of vicariousness?
-Implies fault
Damage calculation problem:
-While P is entitled to the loss caused by the abuse, he had 1) prior sexual abuse at
home and (2) trauma from non-sexual statute limitation barred abuses
How to assess if 2 other causes could fuse with the liable tortious one?
Athey: Place P in position as if tort was not committed = compensate only
for the loss caused by the actionable wrong
T.J.: Prior tort = would’ve suffered loss anyway
-But, can’t let person profit from their wrong
J: were not, but only holding them to the provable
extent of their loss
SCC J: Causation for sourcing loss =/= for assessing damages
-For sourcing a loss; if a cause  fully liable
-For assessing damages; see what the original position was
Not liable for damages incurred anyway
Thin-skull rule? But no evidence that his prior damage exacerbated the subsequent one, or if the
subsequent one didn’t do much and the damage was mostly from the 1st act (i.e. it could be crumbling
skulldoomed to be psych. damaged anyways)
Punitive damages were only applied to the janitor and not to Canada “high-handed, malicious,
arbitrary or highly reprehensible misconduct…”
 63

-On Loss of future earning capacity:

TJ: Didn’t see how the abuse trauma would affect employment
@appeal: it would affect exclusion from some jobs for some time, but TJ found he
was likely to become logger as it was his bros job, and he stopped it b’cuz of
unrelated injury but no intellectual capacity for educational training
 modest sum.

EDG v Hammer [P molested by janitor and family; Thin Skull applies to any case where mult.
Causes are indivisible, regardless if precondition caused by TF or not]
P sexually abused by janitor, subsequent and prior abuse by family.
@Trial: Held D liable for all damages, applying think-skull rule from Athey
-D: This applied only to non-tortious pre-conditions not subsequent torts
J: That is overly-narrow, it applies to “any case in which the injuries caused by a
number of factors are indivisible.”
They are here  full liability

Survival of Actions and Dependants’ Claims

-Common law rule that once dead, all causes of action die with victim.
Legislation reverses this, allows estate’s to sue and be sued (but excludes defamation, non-pecuniary,
and punitive damages)
Alberta Survival of Actions Act: only pecuniary losses, but not future earnings

Ontario Trustee Act RSO 1990

-s.38(1): Except libel and slander, an estate can maintain c.o.a., or be sued, for all torts (even if
no death) but if death results  no award for loss for death or of expec. Of life
Limited to 2 years post-death
Fatal Accident Legislation designed to overcome common law rule that dependants could not claim from
D.

Ontario Family Law Act RSO 1990 s.61 (1):[ Spouse, children, grandchildren,
parents, grandparents, brothers, sisters can sue for: (listed)]
(2) a-Expenses incurred for benefit of dead
b-funeral expenses
c-travel expenses for visitation/etc.
d-services provided for P as result of injury
e-loss of guidance, care, companionship
 64

-but grief and sorrow not recoverable

Keizer v Hanna 1978 SCR [P breadwinner dies from neg; Dep gets what would’ve been
“reasonably expected”; Formula for dependents: (Salary X Working Years) – (income tax
would’ve paid + personal use) = disposal income = to dep.; Contingencies for remarriage,
early death, etc.]
P died as result of 100% D’s neg.; P was home breadwinner, his wife sues for expected support she lost.
-Amount of insurance given is deducted; to assess the rest of the dependents’ claim:
-His (salary X working years) – (income tax would’ve paid + personal use) = disposable income
= the support to his family
-T.J.: Deduction for contingencies of:
-Remarriage, widow’s early death, husband’s early death, accelerated inheritance,
-J: Without evidence to the contrary, should not be assumed
-infant not a burden for whole of working life.
-J: True
The contingency deductions should not preclude P’s estate the possibly to an award that
allows the, to live at least “equal to that which might reasonably have been expected”
-Further discount rate for present rates on return on investment accounting for future inflation

Death of Dependents
Mason v Peters: Except rarely, children = > cost than return

Lai v Gill: Chinese tradition of support for parents  justified higher award

To v Toronto: First born son, only one speaking English, good student, paternal
to sister  large award
-Factors such as closeness of family, culture, birth order, gender, education, etc.

Collateral Benefits [If for ex. P receives an award from D to cover medical costs but P also
has medical insurance to pay for it. D refunded]
-If P can prove he paid for the insurance (his own thrift) [or in case of employees that their
employer insurance was ‘bought’ through a negotiation process where lower wages were
accepted for the insurance thereby ‘paying’ for it] OR unless statutorily specified  no
deduction
-If simple wage replacement or public insurance (OHIP will bill you if you’re awarded)
-Equity right of subrogation can be used to claim ‘double-dipped’ funds; orders refund.
 65

Defences
Contributory negligence, voluntary assumption of risk, participation in criminal/immoral act (As a
defence for D against P’s claims)

Inevitable Accident: To be used by D against P’s claim = special denial of

negligence
Can rely on more than one
Burden ALWAYS on D to prove a defence

Contributory Negligence
-Trad. In common law, if P was cont. neg. to any degree = D not liable at all; no apportionment
’Last opportunity’ doctrine: Allowed P to recover even if cont. neg. if the ‘last opportunity’ to
stop the loss was possessed by D and he failed it  D is fully liable
Still an all or nothing approach (either P or D is 100% liable), but now with
legislation there is apportionment

Walls v Mussens Ltd.[ P tried to help D put out fire with snow; No cont. neg. if agony of the
moment argument raised  makes it reasonable  rebuts cont. neg. (P must’ve acted
unreasonable given the circumstances]
D was fixing his truck in P’s lot, P was not there, his employee was. D was neg. in using torch, ignited
flame. P and his employees tried helping D put out fire with snow. Fire extinguishers were available
but not used.
-Expert: If fire extinguisher were used = no real damage
-D: P was cont. neg. with using snow instead of fire extinguisher
J: P can use defence against claim of contributory neg. which is “agony of the moment” rule
-Not what would a reasonable person do, but what would a reasonable person have
done under the stress of the emergency
Reasonable that P would forget the right procedure = not cont. neg.
The snow would’ve worked were it not for a continuous flow of gas
which it was “improbable” that P would’ve known.
No cont. neg.

Gagnon v Beaulieu [P passenger not wearing seatbelt; Not wearing seatbelt =/= automatic
cont. neg., depends on relevancy of wearing belt to type of injury sustainedonus is on D to
prove; believe in efficacy is irrelevant]
P injured as passenger in D’s vehicle;
 66

D’s neg. is est., claims P was cont. neg. by not wearing seat belt.
P: I do not believe in the efficacy of seatbelts; they may harm more than help.  Not wearing seatbelt
=/= negligence per se.
D: Cannot recall for sure if P was wearing seatbelt or not; injury affected his memory. Claims if he was,
he wouldn’t have bee injured.
Onus is on him to prove P’s cont. neg.
J: using Yuan v Farstad 1967 BCSC: 1-There is a presumption of knowledge of benefits of
seatbelts in preventing injuries.
2-If P fails to wear one, and the injury sustained is the type which would have been prevented
were he wearing one  cont. neg.
3-But if P fails to wear one, and the injury sustained is not the type which would have been
prevented were he wearing one  not cont. neg.
Onus on D to prove relevancy of seatbelt to injuries sustained; court should not infer this
J: Belief in the efficacy is not relevant, law takes no notice of the particular individual; uniform
objective standard which is not changed by subjective belief.
Expert evidence: If not wearing seatbelt, P’s injuries are expected.
If was wearing seatbelt, would not have sustained same injury, but would have marks from seatbelt
impact on his body  he didn’t est. that he was not wearing seatbelt and if he were it would’ve
been prevented.
 Cont neg established.
____

Negligence Act RSO 1990 [If cont. neg  apportionment; common law trad. Is that it is a
complete bar.]
s.1: if 2 or more persons caused/cont.  court shall apportion by degree
They are jointly and severally liable
2-Between tortfeasers, they can sue each other for each’s degree of liability and then cost.
3-Shall apportion by degree of fault between a cont. neg. P and D.
4-If not practicable to apportion  split equally
5-If someone may be liable, can be added on to a ongoing case as a D or a 3rd party.
6-In jury trials, apportionment is a Q. of fact for the jury.
7-If required for justice, P may be ordered to pay costs.
_____________________________________________________________________________________
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Mortimer v Cameron 1994 ONCA [P horseplay injured himself;1.The loss of the cont. neg.
must be RF just as reg neg.; 2. D with more control over preventing loss = primary burden =
bigger portion of damages; 3. The D with an ongoing duty had bigger portion than D with
past duty, even if past duty was neg.]
P was at an apt. owned by Stingray Co. in London City where he and D engaged in horseplay led to them
falling down stairs onto wall which collapsed and rendered P a quadriplegic
@ Trial T.J. found neither P nor D liable for cont. neg. or neg. respectively because the loss was not of a
foreseeable nature (wall was improperly built and not an expected consequence of horseplay)
CA J: Agree; Just as a D can only be held responsible if his conduct is a proximate cause (passes
remoteness test) so must cont. neg. on part of P be a proximate cause to his injury for it to
limit recovery.
 T.J. apportioned liability as city 80% and Stingray Co. 20%
-D City: Failed to take into account proper weight according to responsibility
CA J: True, T.J. only gave reason for city (“egregious” failure to comply with building
code inspection) and gave no reason for limiting Stingray to 20%
Stingray has the “primary burden” for safety precautions; most able to
control to loss which was more foreseeable to them than to the City,
had Stingray done its inspections
Cant say Stingray was dep. On city inspections when they were under
“ongoing duty” which if performed would render the City’s
past neg. (which was undiscoverable) immaterial
Stingray had bigger proportion of responsibility = sufficient strong reason to alter T.J.
apportionment (usually should be deferred to)  Stingray resp. for 60% and City for 40%

Snushall v Fulsang [P failed to wear seatbelt, cont neg.; Range for apportionment for P’s
cont. neg if failed to wear seatbelt = 5% - 25%]
P injured as passenger in accident; found 35% cont neg for failure to wear other ½ of seatbelt
-@ CA: TJ erred; 1st, her failure to wear it did not lead to the type of injury suffered which would’ve been
sustained anyways
2nd: 35% is outside the accepted range for cont neg for failure to wear seatbelt; is from 5% to
25% where 10% of the P’s injuries would’ve been prevented

Kennedy v London [P dumb cyclist hits pole; P can be found to carry majority of liability thru
cont. neg.]
P a bicyclist, hit pole on a trail injured himself, sues city for neg placement without sign
-City found neg for the placement without sign, but:
P found 60% cont neg; he was going to fast to notice even if city put a sign; failed to take
reasonable precaution; and he saw the pole on the way and hit it on the way back
 68

Voluntary Assumption of risk = complete bar to recovery

-was unsuccessfully tried in Crocker v Sundance
Cont neg is only limiting
Onus is on D to est voluntary assumption of risk

Dube v Labar [P and D both drunk, switched seats; V.A.R. = express/necessarily implied
consent to assume risk (legal and physical) and waive legal recourse].
P and D both drunk; P was driving his car; then switched with D who crashed it.
D: P voluntarily assumed the risk
-J: Needs to be express/implied (necessary out of the circumstances) consent to assume risk or
exempt P from possible liability
-Must know the physical, legal risks associated (whole) and proceed while waiving his legal
recourse.
Here Jury found both cont neg and voluntary assumption of risk No liability

Defence of Illegality
Hall v Herbert [P and D both drunk, sue each other, counterclaim illegality; Only applies if D
is trying to profit from illegality or evading consequences of law]
P and D both drunk, P driving, crashes injures himself sues D for allowing him to drive drunk.
D: P was engaging in illegal conduct (complete bar to recovery) by drunk driving
-J: the purpose of limiting comp. if illegal is to prevent: 1) Profiting from illegality
2) Evading consequences of law
 to preserve integrity of legal system
Neither apply here; defence not substantiated Liable

BC v Zastowny [P wants earning for when he was in jail; No rebate for valid punishment
3rd justification of illegality defence; Illegality is defence that frustrates what would’ve been
a valid action]
P was sexually assaulted by a prison guard, upon his release the sexual assault exacerbated his mental
issues and was a factor in his further criminality and incarceration.
-P sues for lost wages while in jail too and future wage loss
@ Trial gave him everything (including jail time); @ appeal limited the jailed time comp. to the period
after he was eligible for parole;
@ SCC: J: This would be a rebate for his valid punishment = undermines integrity/consistency of legal
system  defence of illegality applies to limit comp to only the time he was not in jail + (- /30% for his
chance of recidivism)
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Suspension of liability which would’ve been found anyways; post-fact

Negligent misrepresentation
Causing pure econ loss:
Hedley Bryne & Co v Heller & Partners Ltd 1963 (HOL) [Need reasonable reliance and RF
reliance; exempted if there is waiver-etc. clause.]
Could recover for neg misrep. But not if there is a disclaimer.
1)DoC based on ‘special relationship’ (suff. Proximity)
2)Representation must be untrue, misleading, inaccurate
3)Representor must’ve acted neg in making the representation
4) Representee must’ve relied in a reasonable manner on the representation
5)The reliance must’ve been detrimental

Hercules Mgmts Ltd v Ernst & Young [Shareholders used misrep. docs for wrong reasons; In
Neg Misrep Anns: Do Proximity before RF; Add to 2nd branch policy: 1. ID of the
representees to the representors + 2. The purpose intended is what was actuated]
Shareholders sued the auditors of a co. that went bankrupt for neg prep of financial statements
P claimed that they relied to their detriment on theses docs to make additional investments  pure
economic losses
D: We did not owe a DoC
Affirmed from TrialAppeal; now appealed at SCC
J:Applying Anns test to se if they had a DOC:  1st branch (RF + Proximity) and 2nd branch (policy
limits)
For neg misrep cases: Do Proximity 1st to determine RF
-Proximity= 1) RF that P will rely on the representation by D
2) P’s reliance was reasonable
Different than neg because where there is physical harm it is always
reasonable to rely on the assumption that D will take steps not to
harm you.
Here: It is almost always RF that many people will rely on D’s representations; and these reliances are
reasonable
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5 indicators of reasonable reliance:

1) D had $ interest in the representation made.
2) D was a professional/ had special skill/knowledge
3)The representation made in course of D’s business
4) The representation was given deliberately not on a social occasion
5) Representation was given in response to certain question
NOT determinative/exhaustive
Here 1st 4 are met
In Policy considerations (2nd branch); main concern is indeterminacy:
 2 more considerations: A) D has knowledge of P’s ID? (B) The use of the info/representations
is what D intended them to be used.
-D had knowledge of ID of P; 1st policy limit met
-BUT, the purpose was to allow the shareholders as a group [not individuals] to supervise
mgmt. [not invest]. different purpose = policy reason to limit liability prima facie.

BG Checo Intl Ltd v BC Hydo & power [Tenders called, submitted, and accepted based on
contract mis rep.; If concurrent claimRight to sue in torts remains but as limited by the
provisions in the contract that expressly intend to limit them; 2. Simply mentioning a tort duty
in a contract =/= waiver of tort right.]
D called for tenders for a project, submitted a tender based on representation that there would be a
certain amount of land cleared. The land was never cleared, P sues for neg misrep. Causing econ loss.
Issue of concurrent claims in contracts and torts;
Majority: Checo is liable for breach of contract, but this does not preclude their right to sue in tort.
-If prima facie duty is concurrently raised, p may sue in either except if the right to sue in tort is
expressly limited/waived
-Mere fact that the duty was mentioned expressly (vs implies) does not justify precluding a
claim for that duty in tort
 1) If the contract duty ordering of tort duty contradicts the common law tort duty then the
common law duty must yield to the contractually limited one.
A) If contract duty is more strict than tort duty right to sue in tort NOT extinguished
but probably not as advantageous except to get advantage of a limitation period
in torts
B) The contract has a lower duty than the common law tort duty contradicting the
common law tort Usually by inclusion of exemption/exclusion clause still
can sue in tort for the residual duty not limited by the clauses
C)Co-extensive duties P can sue concurrently or alternatively, no double-dipping.
 71

Here the current case is the third (c ) category  P can sue in tort

Implied v Express distinction?

There is no essential difference; people will choose to make something which would’ve been
implied to be express for purposes of: 1) reducing uncertainty and (2) reducing litigation’s
chance
Should not be penalized by having right to sue I tor extinguished for being prudent
Here no limiting or waiver of the duty Checo entitled to claim against D in torts
Dissent: As general rule, a concurrent claim in tort and contract does not preclude a claim in tort.
If the common law tort duty is expressly stipulated in the contract then the right to sue in torts is gone
and P can only sue in contracts.
If non-existent in contract then P can choose
-The intention to waive the right to sue in tort does not have to be express, it just must be
expressly overlapped The interaction is inferred

Deloitte & Touche v Livent Inc [P’s auditor snaked the co.; Really do need to use the
representation for the purpose it was intended, wasn’t here; 2.Indeterminate liability is a
concern not a veto, its components are listed]
D’s managers manipulated fin records, their auditor at 1 st failed to notice, when he did he failed to act
and instead became an accomplice
-P (The Comp that became insolvent as a result) suing for econ loss due to neg misrep
Proximity and RF test; Reasonable reliance and RF reliance by P?
+further policy limits: ID of P? Same purpose as intended?
To mitigate indeterminacy:
-3 components: 1) Value, (2) temporal, (3) claimants  still it is a consideration and not
a Veto
Issue here; not the same purpose; it (the press release and the comfort letter) was intended
for mgmt. oversight and not for soliciting investment
But the 1997 Audit was used for the same purpose and was neg. prepared liable for that.

Queen v Cognos [P lied to in job interview; the reasonable person test for neg misrep. does not
req the person to guarantee the accuracy of the statements; 2. Waivers have to be specific
enough]
P went to an interview at D’s company where the hiring manager promised him an opportunity to work
on a project without disclosing that the funding was still not secure for it.
 18 months later, after P moved his family to the job, he was fired.
 72

D: We did owe a DOC, but the claim in tort is extinguished by the exclusion clause of the
contract limiting the scope and security of his job.

J: 5 criteria from Hyde that should be met to est. neg misrep.

1)DoC based on ‘special relationship’ (suff. Proximity)
2)Representation must be untrue, misleading, inaccurate
3)Representor must’ve acted neg in making the representation
4) Representee must’ve relied in a reasonable manner on the representation
5)The reliance must’ve been detrimental
J: This is distinguishable from Checo because there the duty was an express right in the contract = this
judge’s opinion that it should be precluded in tort
But here there is no such right in the contract;
The only waiver/exclusion clause is relating to security and scope, not to the
existence and nature of the job which is what P is actually claiming for.
Their right in tort is not extinguished
ON SoC here: the reasonable person test which does not req the person to guarantee the
accuracy of the statements such as is reasonable.
Liable

Five categories of pure econ loss:

1)Neg misrep
2)Independent liability of statutory public authorities
3)Neg Performance of a service
4)Neg supply of shoddy goods/services
5)relational econ loss
Not exhaustive, open to adding more through Anns

Neg Misrepresentation  Pure Econ Loss

Martel Building Ltd v Canada [P tried to sue cuz of bad negotiations; Lots of policy reasons to
limit liability, esp. in negotiations]
P was leasing building from D, when lease was about to end, they were negotiating a renewal, in the
meantime D called for tenders and accepted someone else
P: D ‘s neg  pure econ loss by loss of opportunity to renew original lease
-Delaying appointments, ignoring requests, breaking promise, etc
Novel category anns test:
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-RF and Proximity:

-Here they were in close, prolonged negotiations and D knew of P’s desires/intent
which was communicated  suff. Proximity
Policy considerations: to limit the (a) scope of prima facie DoC; (b) the class of persons to
whom it is owed; (c) the type of damages which may arise?
Concern of indeterminate liability not determinate here because negotiations are small, not
global
Other policy considerations: The very goal of negotiations in a commercia context is a zero-
sum game absence of net harm socially
Would deter socially useful conduct, i.e. saving money by being a tough negotiator
Bargaining power is NOT determinative of liability (D) had higher bargain power)
Would make tort into a kind of insurance
There are already doctrine to address such issues (duress, unconscionability in contracts ; neg misrep
in torts)
Indeterminate litigation in negotiations
Prima facie DoC negated

On Neg supply of shoddy goods/services:

Winnipeg Condominium Corp No 36. v Bird Construction [P a subsequent purchaser sues
original contractor;1. Privity barriers to liability must yield to policy;2. a neg. contractor is
liable for defects caused by him that emerge during the useful life of his work.]
P a subsequent purchaser of the building built under supervision of D but not for P but for a previous
under and trying to sue D for building a building which had damage later.
Lack of privity
J:Here the supply of goods was dangerous and shoddy, not just shoddy  policy reasons to impose
liability on contractors
If D’s neg  defects, then cost of repair is recoverable
But here was there prox and RF? (subsequent purchaser and contractor)
A lack of privity is not relevant, doesn’t affect if harm is RF; at least during it useful life
If injury happens, contractor is liable, if before injury owner wants costs of repair, still
contractor must pay
This defect = real and substantial danger
Policy reasons to limit/negate?
Indeterminacy?
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-Usually express warranties in contract not torts

overlap of contract and tort duty; duty to not construct a neg constructed building is a tort and
contract duty + no indeterminacy for a class  it’s the occupiers; nor for amount, nor for time (useful
life ant not wear and tear that’s inevitable)
Subsequent purchaser is not best placed to find and fix defect; would be an incentive for por
workmanship

No negation of DoC Liable, costs are recoverable

Relational Economic Loss

Bow Valley Husky Ltd v Saint John Shipbuilding [P trying to recover for 3rd party neg-
HOOL/BVI/BVHB…; 1. Issue of indeterminate liability is especially pronounced in relational
econ. loss cases; 2. Still just a concern, there are policy concerns to support imposing DoC.]
HOOL and BVI made a co. called BVHB which contracted with SJSL where SJSL supplied BVHB with a
product procured from RAYCHEM which caused a fire  damage to BVHB and relational econ loss to
HOOL and BVI.
@ Trial: 1) SJSL breach DoC/SoC by failing to warn; 2) RAYCHEM ibid; 3)BVHB neg  accident (by
operation)  60% to BVHB and 40% between SJSL and RAYCHEM; 4) because maritime neg, cont neg =
complete bar
@ appeal: Denied HOOL and BVI for being purely econ, allowed BVHB appeal; but removed TJ maritime
neg rule (no longer applicable) allowed BVHB to collect its 40%. Was appealed to SCC:
Dissent: 1) SJSL and RAYCHEM owed DOC to BVHB to warn; SJSl’s duty not negated by contract;
causality is suff. Between faiure to warn and kind of injury; TJ’s assessment I right; BVHB’s cont neg is
not a bar to recovery
Can HOOL and BVI recover? Pure econ loss suffered as result of damage of property by a 3 rd
party’s negligencecontractual relational econ loss; traditionally unrecoverable
In England, its an absolute rule, except if there is physical damage; but here it is rarely
recovered, exceptionally allowed
Applying Anns test:
 Was there a duty by Ds to warn HOOL and BVI?
 If so they would have a duty to warn Petro Canada and other many investors indeterminate class
of claimants, employees, etc
While there is proximity suff.,, here D knew of the P and their use of it, but is negated by the
indeterminacy issue.
BHVB successed only against RAYCHEM; for policy reasons that encourage the duty to warn
 75

Intentional Torts
Battery:
Direct and intentional bringing about of physical harmful/socially offensive physical contact (does NOT
have to lead to injury, nor the intention to harm/offend)
 Damages tend to reflect protecting dignity rather than actual harm, i.e. slapping someone in
the face in public = more damage than worse physical injury from horseplay

Malette v Shulman 1990 ONCA [Dr gives blood transfusion to Jehovah witness; P not
required to prove lack of consent; rather D must raise affirmative consent to the battery as a
defence.]
Dr held liable for battery for giving a blood transfusion to a women against her wishes because she was
a jehovah’s witness even though it saved her life.
P is not required to show he didn’t consent , rather affirmative consent is a defence to be raised by D

Bettel v Yin [Storeowner accidently headbutts bad kid; Intention of offensive contact is only
req. (or subst. certain to result); NOT intent of injury/consequences]
P (young boy) and his father seeking damages from D, store owner.
P and his friends threw matches into D’s store causing minor damage, D grabbed P and shook him then
accidently headbutt him causing a nosebleed and gave him Kleenex.
J: Citing Cook v Lewis; once est that D injured P, D’s defence is to est lack of negligence and intent
The shaking on its own = battery; D admitted to this, he admitted intent to battery
D: I didn’t intend the consequences for my intentional tort
RF in intentional torts?
In torts you need fault either in the form of intent or negligence
-Battery a form of trespass, i.e. to the person
The Offensive contact must be intended or at leas subst certain to result to be sufficient, intent of
bodily harm is not necessaryNo RF of consequences needed
Liable for battery

Norberg v Wynrib [Dr takes advantage of addict; Consent can be vitiated by undue influence:
unequal position & exploitation]
P is a lady that was addicted to prescription drugs, D was her Dr who was giving her drugs under the
table in exchange for sex.
P sued for sexual battery;
D: P consented
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J: Consent is a defence to the intentional tort of battery but it can be vitiated by deeming that
it was not voluntary
something that may indicate a lack of voluntariness is duress or unconscionability
based on unequal bargaining power
2 step test: 1) Are p and D in unequal positions of power (knowledge, authority, etc.)
2) Is there proof of exploitation of this inequality?
Here D had knowledge of P’s vulnerability, and used his authority and ability to give the pills
in exchange for sex, which consent was vitiated by this exploitation liable

Non-Marine Underwriters, Lloyd’s of London v Scalera [Need direct physical interference,

not indirect]
Court stated that P must est. a direct physical interference and not indirect (i.e. if x sets a trap or poisons
Y’s food = indirect = no liability)
OR at least the interference must be the immediate consequence of a force D set in motion
Once a direct injury is est., onus is on D to disprove intent and negligence
[*if D has been criminally charged for same battery, that charge is not determinative of a claim in tort
but is supportive evidence]

Assault:
The intentional creation in the mind of P of a reasonable apprehension of immediate physical contact.
Therefore conditional, future threats, or just words =/= assault
But courts have tended to give more focus to the impression created even if conditional
Actual contact not necessary

Holcombe v Whitaker [“If you sue me I’ll kill you!”;Generally conditional threat =/= assault,
BUT (show of force + unlawful demand (to avoid battery)) +R.A. in P’s mind of imm. threat =
assault]
D was a Dr., when P went to him he threatened to kill her if she took him to court, then he went to P’s
(patient) house and said the same while trying to pry the door open.
D: It was a conditional threat therefore not a threat of immediate battery and no overt actnot an
assault
J: A show of force + unlawful demand, compliance with which will avert the threatened
battery = assault
Here D had no right to impose on the P a condition that she comply with his unlawful
demand for her to abandon her right to sue in exchange to not be a victim of a
battery
The overt action was prying the door trying to get in the apt. and threatening her
Reasonable apprehension in P’s mind?
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-She asked friends to sleep with her at night, became fearful, etc

Police v Greaves [“Get off my prop. Or I’ll kill You!” to cops; If every other element met +
perceived ability to carry out threat even if conditional Assault]
Miss X called cops (P) on D who attacked her; once the cops arrived, D opened door with knife and
threatened to kill them if they don’t get off his property.
Was dismissed in a lower court for being a conditional threat = not an assault
J: If every other element is met, just because threat is conditional =/= its not an
assault;
Especially when the condition in the threat is not within the legal purview of the
threatener as it is here,
There was also sufficient evidence to believe that D had the ability to and would carry out his threat
if the illegal alternative were not complied to.
Sufficiently liable for assault

Warman v Grosvenor [Harassed online; Even if otherwise “just words” a sufficiently strong
apprehension of imm. battery  Assault]
P was a victim of repeated and prolonged (over 2 years) series of threats posted online by D.
D: They were empty threats not imminent, just words = not assault
J: The nature of the threats were in a public forum, D invited conduct from everyone and they
did act on it before by calling his co-op building to try to get him kicked out  there is a
reasonable apprehension of imminent battery
Liable

Intentional Infliction of Nervous shock/Mental Distress:

Prior to Wilkinson, nervous shock not recoverable except if accompanied by
physical injury

Wilkinson v Downton [Really bad prank, your husband’s injured; Even if otherwise just
words, if it was a misrepresentation constructed to cause mental harm, (or would be so obj.
det.), even if extent is more than RFliable]
D made a prank to P where he said he husband was involved in an accident and both his legs were
broken and that she need get him.
P became severely distressed and in fact sent someone to get her husband (who was fine)
P claiming the cost of the false transport and expenses for her and her husbands costs for her psych
treatment
No evidence of any pre-disposition
The misrepresentation was intended by D for P to act on
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D willfully done an act calculated to cause mental harm; or if such a statement would
in the circumstances objectively would produce such a result its imputed
Even if extent is more than anticipated
There is wilful harm and the consequence was suff. Direct  Liable

Radovskis v Tomm [Claiming $ for mom of rape victim; Need actual proof of mental distress
beyond grief + shock must be direct consequence of D’s act]
P’s daughter was raped; P claiming special damages on behalf of her mother who suffered mental
distress
There was no medical records or evidence
Without proof otherwise, this is not a mental shock but grief Not recoverable
The shock needs to be the direct consequence of the act

Samms v Eccles [Stop asking for sex; If act is intended to be malicious, even without physical
harm or medical evidence  viable CoA; test included]
P sued D for his insistent requests for sex.
J: Traditionally courts bent over backwards looking for a physical tort upon which to peg a claim for
psych. Distress on  unnecessary
If the tort is wilful/malicious and not merely neg.  can recover for mental distress even without
physical injury
-A) D had as a purpose, infliction of emotional distress
-B) Any reasonable person would have known that such would result
-C) D’s actions offend societal standards of decency
Medical evidence not necessary, but helpful
Usually there is no harm in asking for sex = not actionable; BUT here the intolerance for it was
indulged to D and he insisted  TJ erred in dismissing the action; could possible succeed

Broadening of Liability
Prinzo v Baycrest Centre for Geriatric Care 2002 ONCA [You’re just malingering; Even if
flagrant and outrageous,  liable for unforeseen extent due to thin-skull]
P worked in D’s shop for 17 years, took a few months off because of a mental illness D fired her
claiming it was because of financial issues and accused her of malingering (feigning illness to miss work.
She was not; this caused her additional mental harm
D’s actions was flagrant and outrageous and calculated to cause harm was held liable
 79

Discrimination
Seneca College…v Bhadauria [Claimed employment discrimination; Appeal gave hope for
common law remedy, SCC asserted only remedy is through Human Rights Code [Stat.]]
P complains she was discriminated against because of her ethnicity because although she worked with
them before and was very qualified and she applied many times yet never got a response.
She claimed this caused her mental distress and violation of Human rights code

@ Appeal: If J has a right, he has a right to vindicate it  actionable in both the Human Rights Code
institution and common law

Supported by public policy, should be a novel claim/cause of action

@ SCC: The common law and civil law causes of action are superseded by the Code mechanisms
(Tribunal and Commission) = procedure for vindication of that public policy

Public Authorities: [Duty/Power? Policy/Operational?]

Liability of public authorities depends on the statutory authority that it acted under:
-If that statute conferred a duty upon the party to act in the way it acted and the result of (neg,
nuisance, etc) is inevitable  No liability (usually)
-Duties to public are less likely to succeed to particularized duties
-except if damage is result of neg. or failure to perform the duty
-Assumed that the legislature balanced the interests and chose to proceed in that way
-If the statute does not confer a duty but a discretionary power whether to do the thing and
the manner in which to do it then:
If it is a pure policy decision  no liability
If it is an operational policy decision  Open to find liability

R v Sask Wheat Pool [Illegally sold ‘em rotten wheat; breach of statute = prima facie evidence
of neg., need full neg. analysis after  look @ statute for DoC/SoC]
D supplied rotten wheat to P (the Board) in violation of s 86(c) of Canada Grain Act 1970
Is there a civil cause of action, or just based on the statute?
Is the liability absolute?
The breach of the statue is prima facie evidence of negligence = presumption of neg with
onus of rebutting it on the D (with all the usual elements of such, i.e. causation, remoteness,
etc.)
Must recognize some accountability of expanding state but must leave gov free to govern
1) Civil consequences of breach of statute are subsumed in law of neg.
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2)No absolute liability for breach of statute or new independent tort of statutory breach
3)Proof of statutory breach, causation could be evidence of neg.
4)The specific formulation within the statute is helpful in determining standard
Here neg is neither pleaded nor proven  no liability

Just v R (BC) [Boulder killed P’s daughter; If discretionary power  if pure policy =
immune/ if operational decision = open to be liable (after an Anns’ test, in consideration of
the statute)]
P’s daughter was killed when a boulder from highway side fell onto their car. P sued the gov.
-Dept of highways is statutorily authorized
General presumption of liability unless exempted by being true policy
Has to be bona fide exercise of discretion (whether and the manner of-)
Then decision must be made reasonable and without neg.
Consideration of limited resources and allocation between competing interests = more prone
to be considered policy
Still need to determine proximity and RF if they are not exempt;
Exemption may occur by express legis or by nature of conduct/decision
Manner and whether would be assess as a SoC issue; according to traditional torts
unless there is specific standard in the statute
Here the decisions regarding inspections were implementations of policy, i.e.
operational and not true policy  Assess neg. in new trial
Dissent: The only way a gov body should be liable is if the policy were implemented according to extra-
municipal purpose that is illegitimate ulterior motive
Otherwise court would be usurping the poli. Body; to be decided in the ballot box
Here there is no duty, just a power  manner and whether = discretionary; delegated  shouldn’t 2nd
guess
Otherwise what aspect would be immune? Just the decision as to whether?
 In order for civil liability to arise, would need to show the body acted outside its
delegated discretion.
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Effect of Cooper v Hobart on Liability of Public Authorities [When doing Anns for Public
Auth. Put policy/discretion analysis in 2nd branch; statute is primary consid. in finding
prox./RF, can also @ interactions above & beyond]
1-Concerns of the policy/discretion distinction fall into the 2nd branch of the Anns test  Policy
consideration residual to limit/negate; i.e. proximity and RF may be found and still exempt the
public body
2- Due to the emphasis on proximity, if the conduct is ministerial, involves budgeting,
allocation, etc  court should find either that it was not in a proximate relationship OR that it is
negated by policy

3-A statutory breach on its own is insuff. to est a cause of action (Sask Wheat Pool) but need a
common law duty breach too

even with a common law breach, its still not determinative

Still, the statutory framework is the primary consideration in est. whether there is
sufficient proximity and in neg. claim in general

Taylor v Canada (AG) [Implants were bad; Can find prox. In public auth. Through the
interactions to find relationship beyond general public-auth. Relationship. In the statute]
P got implants caused her injury, she sued the gov regulator for failure to warn (neg) and neg. misrep.
-The neg misrep claim based on assertion that gov claimed they were safe
The gov body was given a discretionary power by the statute not a duty to inspect which ultimately
fell upon the sellers of the products
-Gov (d) : no cause of action
J: RF not suff. (Childs) need proximity
-1st look at the legis scheme; does it foreclose or impose a DoC? Is it public or particular?
If so court must defer.
Can be inferred/implicit from the interactions; to find proximity  prima facie CoA
Public body needs to create through the interaction an “extra” relationship
with P; ex whereas cops owe duty to public, they are in suff. Proximity
to owe you a private duty where you’re being questioned not when you’re
walking down the street.
However if the statute states an overlapping duty as with the common law it is not
automatically foreclosed
The interaction can still give rise to suff. Proximity.
Generally, where the public representations the gov made were not suff. To est. a proximate
relationship beyond their power regarding the public  no inferred from relationship either
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Here: The misrepresentation is the notice of compliance  overlapping public and private
duty i.e. not to misrepresent to public

The notice of compliance was outdated, Gov was aware, failed to fix

The affected po. Is identifiably small  suff. Proximity above and beyond general public duty

See Doe police case; small ID affected, previous direct communication, failure to
warn, RF harm  proximate There is a CoA

Alberta v Elder Advocate of Alb Society [Go ripped of elders; If nothing in the statute and no
interaction-based prox  no CoA]
P argued on behalf on seniors’ homes (Saul Goodman!?) that gov artificially inflated the residents’
contribution to use as subsidies for the operations
P: breach of fiduciary duty, neg., unjust enrichment…
-Gov owed a DoC to all the class members to not use their fees as subsidies?
According to the enabling statute there was no such duty only a discretionary power
Nothing from the interactions (notwithstanding that the gov has audited their stuff
before) gives rise to inference of suff. Proximity
Plus 2nd branch anyways (even tho no prima facie DoC was found);
indeterminate liability of pure econ. Loss  no liability

R v Imperial Tobacco Canada Ltd. [All Policy is discretionary but not all discretion is policy]
P (Gov) claiming health costs from D; P (Class action) claiming refunds
D counterclaiming; against Gov: 1) A 3 rd party notice that if they’re liable so is the gov
 Gov responds to the counter-claim: There is no cause of action for this
2) Gov is a supplier  should also be liable under the legis.
3)Gov breached a private duty; neg misrep. To consumers (by
ad that said lower tar are healthier) as per the Neg Act
4)If not then they’re liable in equity
All struck out in SC except the neg misrep, appeal was allowed
On the failure to warn (the tob. Co of the health issues); neg. design of tobacco plants; n
neg misrep
Does Gov have DoC as a supplier?
Ann’s test  Proximity; For statements made between Gov and consumers/tob co
No prima facie DoC for consumers; but there is for Tob Co
Their ads directed @ consumers were too general to give rise to a specific interaction
beyond their public statutory duty  no proximity with consumers
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But as between the tob co and the gov: primarily an interaction-based claim;
Tob co: Gov took advisory position in harm reduction program  detrimental reliance
On neg misrep.
-Cited Hercules: 1) RF reliance = met; 2) Reasonable reliance = met
-Gov acted as designer, dev., promotor, and licensor under discretionary
power
Gov: The act (that the tob co would be liable for health costs after this reliance as per
the “Act”: CRA) was not RF.
J: It doesn’t have to be
Gov: Our role was only regulator not advisory limit reasonableness of reliance
J: That’s irrelevant to reasonable reliance; doesn’t need to be reasonably
believable that P will think that D is guaranteeing the accuracy
of the statements, simply that it is RF to D that P will rely upon them ;
regardless of perceived beliefs in accuracy
 Sufficient prima facie DoC
Stage 2 Residual Policy concerns:
Gov: 1) It’s a pure policy decision = immune; and 2) would raise issue of indeterminate
liability; 3) would create a de facto insurance scheme from torts; 4) would
transfer responsibility to where it is not best positioned to be
J: Accept; prima facie negated @ stage 2 policy consideration; mainly reasons 1 & 2
It was a pure policy decision that the statements were made as per a policy of
discouraging smokers from high tar products (Just)
Tob: Those were operational, they were participants
J: IF we use discretion = immunity That’s too broad an exemption for gov;
but if we use the operation/policy distinction  unworkable; new rule:
Policy is always discretionary; but not all exercise of discretion is policy
-Policy = general principle/approach in context of weighing social/political/economic
considerations
-Discretion = whether one had a choice to ace in one way or another in the
implementation of the policy
Here it was a true policy to discourage smoking high tar = immune @ stage 1; even if went to stage 2
the issue of indeterminate liability would exempt gov from liability because no control and a pure econ
loss
On the failure to warn: This is a positive duty need special DoC; and even if  indeterminate
concerns
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On neg design: Prima facie was est. but failed @ stage 2; pure policy
Plus taking the legis intent in a broad context; they intended the resp be shifted upon
tob co not the gov
On liability by contribution; J: You need to be liable directly to P too 1 st
Counter Claims failed.

Davidson v Canada (AG) [Female RCMP sues the force; Can direct a CoA at a class of civil
servants if the institution is statutorily immune; public employers can be held vic. Liable for
torts between civil servants]
Female RCMP suing the RCMP for sexual based allegations (assault, etc)
Gov: 1) Crown immunity
2)Vicarious Liability is the only avenue; not applicable here
3) No breach of contract b’cuz it’s a statute based employment
J: No need for individual based vic. Liability because the claim may be directed at all the male
member of the RCMP during her employment
Crown is still Vic. Liable for actions of one civil servant to another.

Brown v Canada (AG) [Sixties Scoop; Gov. failure to perform a stat. duty = CoA; but if
performance of the duty would’ve led to the same result (inevitability) = no CoA]
“Sixties Scoop”; thousands of Natives picked up and put in foster homes;
Class action against the fed gov; 1) Crown breached fid. Duty/ common law DoC to the natives by neg.
allowing them to lose their native identity
Gov: Action was authorized by statute: Can.-Ont. Welfare Service Agreement = policy.
J: It set out an obligation to consult though; never occurred = failure to perform
statutory duty
Gov: Even if we consulted nothing would’ve changed; Natives wouldn’t give
any good advice
Natives: Not true we would’ve asked for period visits, etc.
GovL Social science evidence was insuff. @ time to see effects of inter-racial
adoption
J: You’re missing the point; Gov knew of importance of their identity
to them as a culture; Canada should’ve made info available and
consulted
Ann’s test: Proximity/RF? Yes; special/long-time relationship between gov and Natives above general
public + harm was RF (political trust, vulnerable children)
Stage 2 Policy: Gov: If we were req. to provide info  penalize us
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J: not true; the common law + stat. DoC was breached +suff. Prima facie
Not negated

Nuisance: [Strict Liability offence; reasonableness of effects not

conduct]
Distinguishable from negligence; in nuisance claims it is the reasonableness of the
consequences/effects of D’s acts whereas in neg. it is the reasonableness of D’s acts themselves,
regardless of the effects
You can be found liable in nuisance even if you acted reasonably
Meant to protect the subject’s interest in the lawful enjoyment of his property
But must be balanced with the D’s interest in carrying out the activity and the common
interest in the social value of the acts along with their incidental effects
Can be physical damage; or without that it could be an impairment of enjoyment with property; or it
could be entirely non-intrusive (ex: a brothel attracting sketchy people to the neighborhood or installing
a sewer system causing water to drain away form P’s land)
Usually court wants there to be physical damage, and if not then it must at least be
continuous (not always)
Liability is strict; don’t necessarily need fault but due diligence defence may be available
Whether intentional, neg., or non-faulty is irrelevant
As per Hunter; only a person who has a possessory interest in the property can sue (i.e. the tenant but
not his children).
D can be held liable even if didn’t create the nuisance but allowed its continuance; awareness and
failure to take reasonable steps
 A new CoA arises each day the nuisance continues
BUT can raise defence of prescription if: a) nature of nuisance remains the same over the
period; and b) P was aware of it.

Private:
As distinguished from public nuisance which is link to criminal law concept of common nuisance where
society’s interests in lawful enjoyment of common property is violated;
There is a possibility to support a particular CoA for private nuisance in public nuisance if D is
affected beyond what the general population has by way of right; i.e. in addition to his
public right to the common property, if he has an additional proprietary right to that common interest
he may be able to support a claim of private nuisance on top of the public nuisance.
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Sturges v Bridgman [English case on coming to nuisance rule]

No zoning laws at the time, but different streets for different uses
P a Dr. working on a street full of other Drs; D was a confectioner, had his mortar for many
years and used it before P moved in. P moved in and set up his consulting room in the
room directly adjacent to D with mortar banging
P sought an injunction for the nuisance; D: he had a prescriptive right and P came to
the nuisance
Court rejected that and imposed injunction; to prevent the inhibition of the
useful development of land [i.e. to encourage capitalistic econ
expansion].

St. Lawrence Cement Inc.[Private nuisance = strict liability]

D operated cement plant; P (class action of neighborhood) claimed nuisance from the amount of dust
TJ awarded $15m, even tho D found not at fault, P had suffered “abnormal annoyances”
@ Appeal reversed Trial; imposed liability no based on no-fault but on breach of duty
(i.e. fault).
@ SCC: Restored TJ decision (moved civil law [this is in Quebec] nuisance closer to common
law in that nuisance is a strict liability tort.

340909 Ont Ltd v Huron Steel Ltd [Noisy plant and apt. building; 1. Nuisance is judged by
wide standards [test included] (severity(nature/duration), locale, utility, sensitivity; 2. P
coming to nuisance =/= defence; 3. Addition of fresh noise = new nuisance]
D had a stamping plant in operation for many years, which many years later P bought an apt. building
across the street, 2 years after which D got a new machine, and again 4 years after that. P claiming the
noise from the plant caused him econ loss in tenants moving out and lost property value
Conflict on each subject’s exercise of right/interest to exploit their property without interference;
need to balance through compromising
Need to take into account the community standard of tolerance i.e. zoning
Is the D using his property in what the community (vicinity) would describe as
normal?
Other Factors: 1) Severity of the interference; nature and duration
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2)Character of the locale

3) Utility of D’s conduct
4) Sensitivity of the use interfered with
Irrelevant here since P’s use in renting is not particularly sensitive
On 1) Severity: Nature, duration, effect:
Nature: The noise is a reason tenants have moved out
-The noise violated sound guidelines outdoors; while not applicable
indoors
But the tenants’ ACs negate much of the noise inside
Duration: On and Off in varying shifts, hours, etc for ten years
Effect: Nuisance must cause damage;
Here P demonstrated that at least one of his tenants moved out because of
the noise AND a property value estimator said his property value is
lower than normal because of the plant’s noise
Accepted by J
2) Character of the locale: It’s a “mixed use” are
1st”: No defence to a nuisance action to say P moved to it
2nd: Noise began after P moved when the new machine was installed
addition of a fresh noise Rise to a claim of nuisance no matter what the
locale
No answer to say neighborhood is already noisy or this is the best
available tech
3)Utility of D’s conduct: Value to the community and whether D took all reasonable
precautions.
employs about 200 people = valuable, but D says they’d be at risk if repairs were
made
They did go through a lot to try to reduce the noise; but additional improvements
could be made (according to the experts)
Unreasonable nuisance actionable nuisance got lost revenue, reduction in value, and an
injunction.
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Hollywood Silver Fox Farm Ltd v Emmett [Shooting on my land to annoy your foxes; 1. One
can’t increase liability of neighbor by putting his land to unnatural use; 2.If nuisance was
created intentionally  strong presumption of liability]
P bred foxes; D claimed that P’s sign advertising his fox farm was harmful to his plans to build a
residence Comm.; P refused to remove the sig; D went to the edge of his land during the time when the
foxes were to breed and shot his gun to disrupt them; P sued in nuisance
D: I am entitled to shoot on my own land; motive is immaterial
Cited Eastern v South African Telegraph: A man cannot increase the liabilities of his neighbor
by putting his own property to special uses.
Keeping a fox farm = special purpose cant be used to increase D’s liability for shooting on his
won land; normal animals like sheep and such would not be disturbed by D shooting
J: It is perfectly legal to keep a fox farm and the fact that the shooting took place
intentionally is material
Quoted Guant v Fynney: Supposing malice to be out of the question, a nuisance by noise is a
question of degree.
So if malice is IN the question nuisance is not a matter a degree anymore
Not legitimate noises, made deliberately and maliciously to annoy P; even if
done in reciprocation to P’s lawful, unmaliciously noise
Liable; got damages and an injunction limited to the breeding season

Tock v St John’s Metro. Area Board [Rain flooded basement; 1. The fact that damage will
inevitably fall cuz of statutory power =/= suff. to bar recovery]
P’s basement was flooded, subst damage from rainfall which clogged the sewer system
-P called the board, they sent over employees and fixed the clog, but by then it was already
damaged
@ Trial; the flooding caused by the blockage and not the rainfall
Dismissed neg claim, allowed nuisance because the Boards collection and drainage of
water from rain = non-natural use of land
@ Appeal it was reversed on basis that the collection of an indispensable resource =/=
unnatural use of land. + City acted under stat. duty which rendered the nuisance outcome
inevitable no liability
@ SCC: The fact that damage will inevitably befall D because of a statute =/= suff. To bar
recovery Allow appeal, dismiss Appeal judgement restore TJ
Dissent: Need to consider more heavily that this is a public body acting under statutory authority, while
agree that no on-natural use of land is applicable here
However, the municipality was acting under statute which conferred a discretionary power
and not a duty :
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1If duty and nuisance is inevitable consequence of that duty the nuisance itself is
authorized and no recovery
2If confer a discretionary power which is specific to the manner/location of doing the thing a
auth. And nuisance is inevitable consequence  same as above
OR: 3If confers discretion of whether to do the thing and how to do it; it must do it in a way
that does not create a nuisance; if it does create a nuisance it will be liable whether negligent or
not.
On Inevitability: A:Express language provision = no action for nuisance may arise OR B: necessary
implication of the language + factual finding that the nuisance is inevitable
Here the statute did not specify whether or how; D did so and created a nuisance liable
The B.o.p of defence of stat. immunity is on the D
RULE: Courts reluctant to recognize common interest > individual interest; it must be est. that
there were no alternatives if they’re given the discretion.
Not mere cost considerations though; must be practically impossible to avoid the
nuisance.
Appeal disposed

Ryan v Victoria (City) [Leading case on nuisance liability for public bodies; regardless of
policy/discretion, immunity only applies if practically impossible to avoid]
Defence of stat. auth. Only applies if practically impossible to avoid the nuisance
Regardless of distinction between policy/discretion

Smith v Inco [Nickel infestation; Need to show some kind of damage/loss/interference to

claim nuisance]
P (class action) neighborhood land was infected with nickel particles from D’s plant operating for 66
years.
@ Trial: Found private nuisance and gave damages for deprecation in value but rejected
punitive damages; assessed it as strict liability; land was used for unnatural use
D appeals: 1) TJ erred in holding that discharge of nickel particles = actionable; 2) erred in using non-
natural use in making D liable; 3) err in holding that P had est a diminution in value; 4) Erred in assuming
that where there was a diminution, that such a diminution was caused by the discharge; 5) err in not
holding that it was limited by limitations act
Appeal allowed and action dismissed; either no CoA, or if there is, no proved damages
D has stopped emitting nickel since closure about 40 years before the suit
No evidence of neg. or violation of any standards; D concedes it was the source of a majority of the
particles
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Gov testing was carried out and no indication of suff. Level of nickel to pose danger to health
Only claim is to depreciated property values; Ds claim their property area has not risen in value @
the same rate as other similar areas
The nickel in the soil = physical damage; difference s TJ didn’t see it as nec. To consider the other
factors in nuisance such as utility, etc
Must be considered, even if physical see Tocks
Here TJ erred in considering it a physical injury to the property; it’s a mere alteration in chemical
composition
Need to show the detrimental effect
If they had shown there was negative health effect they ay have succeeded
Nuisance not based on concerns but damage/interference with enjoyment(i.e. utility)
P claiming it’s the concerns about the damage (to health) depreciated value
moreover these concerns arose much later than the actual discharge to fit into an
actionable nuisance
Here P failed to show that there was actual deprecation in value  dismissed.

Public Nuisance:
One of two forms: 1- Common Interests; eg river, public highway
2-Private Interests Combined: large scale interference with private property  2
options; each sue individually, OR aggregate their interests and sue in common
nuisance seeking public remedies
usually need about 10
Public nuisances usually addressed through public law, CCC.
If criminal offence, AG could prosecute on behalf of public or can allow a private individual to
sue in AG’s name
It is possible for a private person to sue in a public nuisance without rep. by AG if his injures
are “above and beyond” others in public
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AG ONT v Orange Productions [Annoying concert; A common nuisance needs to be

widespread in range and indiscriminate in effect; Comm. = class of her Majesty’s subjects;
Comm. entitled to quiet enjoyment]
P (AG) seeking interim injunction against D from holding outdoor rock concert; last time they had public
sex, drugs, loud music, trespassing.
A neighborhood = class of her Majesty’s subjects; a representative cross-section is suff for
evidentiary purposes, not needed to show every ind in the common class was affected
-Some can be est. without anyone, eg. A river polluted
-Quoted Denning: Public nuisance = a suff number; where the nuisance is widespread,
indiscriminate in range and effect, respectively; resp of comm at large to take action
even if sidewalk which is rarely used; its indiscriminate
But if nuisance is limited to 2-3 property owners  they should sue
individually (Not suff. Collective interests)
Here, the whole festival with the numbers, noise, dust, last year’s experience until proper
sanitation and some limits are set interim injunction
-The comm is entitled to quiet enjoyment; D would be grossly excessive

Hickey v Electricity Reduction Co. [Fishermen claiming part. In public nuisance claim; Need
to have a special right (not just special interest/preference/business) which is affected beyond
your right as member of the public]
P class of fishermen suing the plant (D) as a public nuisance
Not enough to show that their business was interfered with to est a public nuisance; needs to
be above and beyond the public right
everyone has a right to be a fisherman = not any special injury by this [public nuisance
No particular rights effects; ex. If they had a fishery and it was polluted on top of the
public ocean then they would have such a special right
If they just suffered differently in degree = imsuff., must suffer differently in
type

Remedies for Nuisance:

Most common remedies are damages and injunctive relief, less common are self-help abatements
Injunction: Court ordering X act in a certain way
-Can be prohibitory or mandatory
-Can be interlocutory (temporarily restrains D pending P’s attempt to est. case for perm.
Order)
or quia timet (to prevent an anticipated harm),
or permanent (only after a full hearing and resolution)
 92

Mendez v Palazzi [Roots threatening property; Need actual and substantial damage (or
imminent) to justify injunction (or quia timet injunction -respectively)]
P: roots from trees on D’s land have interfered with my enjoyment of property
minor damage to lawn, but threatening more sever damage to septic tank, other things
@ issue: What is the proper remedy if considered an actionable nuisance?
Mandatory injunction or damages? At least a quia timet injunction?
Depends on: 1) If injury to P is small; 2) Injury is capable of being estimated in money, 3) P can
be adequately compensated with small payment, 4) It would be unjust tom impose an injunction
upon D
Here 2-4 apply; is an injunction justified?
There must be: 1)Actual damage and 2) damage must be substantial
Here there’s actual damage but not substantialin suf to order mand injunction,
would oppress D
Quia timet injunction? You must have:
1-If no actual damage is proved there must be proof of imminent danger and (2) proof that the
apprehended damage will be substantial if not corrected
I.e. must be proved the damage is (or will be ) irreparable and very imminent
Here there was insuff. evidence of thisOnly awarded $500 for general/special
damages

Miller v Jackson [Cricket nuisance case; While no defence to say P moved to nuisance, can be
mitigated if P knew of or ought to have known about its presence and if the balance of
community/private interests yield that conclusion.; injunctions requires more careful consid.
Than neg. claims]
P bought a house adjacent to a cricket field that had been in operation for many years prior
Cricket balls have caused minor damage, broken windows; D put high fence, instructed played to keep
shots down, and offered to place net over P’s garden whenever there was a game and install shatter-
proof windows, shutters, and pay for any damages
P rejected, sought an injunction; @ trial they succeeded with both neg and nuisance  got
injunction and damages; D appeals
Denning: 1st: P is suing in nuisance because there cannot be any injunctions in neg. claims (can’t stop x
from acting carelessly)
Still in nuisance need fault of unreasonable use of land, according to community standards
Here the cricket club is a reasonable use and been played I same spot for over 70 years, now 1
P wants to move in and upset everything because of rare occasions of nuisance?
 93

Need to balance competing rights; plus P must’ve known when he bought the house or at least ought
to have known about the presence of the cricket field and the possibility of the alleged nuisance
Additionally the burden on P to avoid it is small, go to front yard instead of back, sit
inside, or go out when there is a game; or take advantage of what D has offered,
or sell his house, someone will love it so close to a cricket field
Here not a question of damages, for even if million to one chance of damage, if it occurs (it is RF) D
will be liable, but in asking for an injunction rights have to be balanced more carefully
here the public interest > the private interest No injunction, only damages; appeal allowed
J LaneL: The only question is whether it is unreasonable.
Here there is a real risk of both injury and damage
Based on precedent: It is not an answer for D to say P came to the nuisance, only
whether the conduct is unreasonable
Unless by prescription
Bound by this decision, Denning is departing from auth.
Would grant an injunction postponed to allow D to relocate
J Cumming: Using equity not strict common law  fair balance between right
Here the awareness of P of the use of the land and the potential nuisance which was RF 
offset the P coming to nuisance defence
plus considering interests of the whole no injunction, only damages (400 pounds)

Spur Industries Inc. v Del E Webb Dev Co. [If aware, bring a pop into a prev agri area and
sought/granted an injunction against that lawful business which was previously not a
nuisancecompensated injunction; A party cannot call upon the law to make a place suitable
for him when it was not so before]
For many years D had cattle lot; P moved in and decided to build residential complex; realized many
areas not usable  sought injunction against D to relocate
1. Where the activity is legal, but becomes a nuisance later, is it injunctionable?
-Dif between a public and private nuisance is one of degree
If injury is slight  damages and esp if need to balance inconveniences (conflicting interests)
The people living ther are suff. To raise public claim in nuisance and the devs’ loss of
these sales is suff. To allow his particular action to join  injunction is justifiable
2.Assuming it is, does the developer have to indemnify D for his loss for relocating/ceasing
business as a result of the injunction?
While protecting the public interest, courts must also protect the private interest in
conducting legitimate business, albeit noxious
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Issue of coming to the nuisance defence  here it can be said P chose to take advantage of
what the different zoning here entailed (eg lower costs etc) but this comes as a bargain package
and must be taken with the disadvantages
A party cannot call upon the law to make a place suitable for him when it was not so
before
If the dev were the only injured party we’d agree the coming to nuisance frustration would apply,
but here it is the public interest in mind
Here P brought residents to the foreseeable detriment of D’s company [that the public
interest would be invoked justifying an injunction to move  losses to D for P taking
advantage of rural low cost land
P must indemnify D for the costs associated with the injunction.
Such a remedy is limited to cases where a developer with awareness brought a pop
into a previously agricultural area and sought/granted an injunction against that
lawful business which was previously not a business and is left with no adequate relief
Compensated injunction