GENERAL

Negligence: conduct which falls below the standard accepted in the community
Purpose of tort law: compensation, appeasement, justice, deterrence [Evaniuk v. 79846 Manitoba Ltd]
Plaintiff bears the burden of proof on the balance of probabilities
o Must prove
Did the Defendant owe the Plaintiff a duty of care?
What is the standard of care?
Was there a breach?
Damage: what harm did the Plaintiff sustain?
Causation: did the Defendants negligence cause the Plaintiffs damage?
Remoteness: is the Plaintiffs damage to remote?
Consider defences

HARM
Was there harm?

Harm could be:

o personal injury (with consequential economic loss wages, etc.)
o property damage
o economic loss

Who?

Who was harmed?

Who did the harming?

DUTY OF CARE
Is there a duty of care owed by the Defendant to the Plaintiff? (Yes or No?)

Neighbour Principle: to whom do I owe a duty? [Donoghue v. Stevenson]

o persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions in question
Test for duty
o [Cooper v. Hobart derived from Anns v. Merton London Borough Council and Donoghue v. Stevenson]
Is this a novel duty? If yes:
Is the relationship sufficiently proximate and reasonably foreseeable?
o No duty of care is owed to an unforeseeable plaintiff [Hay (Bourhill) v Young]
Are there any reasons to negative the duty? Policy considerations?
Are there any external policy considerations (beyond this Plaintiff/Defendant rltnshp)?
o What would the effect of recognizing a new duty in this sutation have on other
legal oblications?
o Indeterminacy issues?
o Note: special analysis for economic losses!!

MISFEASANCE V. NONFEASANCE
misfeasance: failure to perform an act when a duty existed, causing harm [Donoghue v. Stevenson]
nonfeasance: lawful acts performed wrongly, causing harm [Horsley v. MacLaren]
RESCUE
No duty at law to rescue a Plaintiff at risk if Defendant didnt contribute to risk [Horsley v. MacLaren]
CREATION OF RISK
Jordan House v. Menow: over service of alcohol then ejecting Plaintiff without taking care for his safety
(statutory duty)
o Contrast with Childs v. Desormeaux: social host, didnt serve, not aware of Defendants intoxication.
Oke v. Weide Transport: not warning of bent sign post (judgment was in DISSENT)
Zelenko v. Gibel Bros.(medical undertaking): assuming a duty but not following through
STATUTORY DUTY OR STANDARD
1

Is there a statutory duty or standard? [Gorris v Scott] [Emergency Aid Act]

SPECIAL RELATIONSHIPS: CONTROL

Are the parties in a relationship of control/supervision? Reliance? Economic benefit?
o Teacher/pupil; employer/employee; carrier /passenger; prison/inmate; hospital/patient
A duty to assist may be imposed in these cases
A relationship of care and control will bring about an affirmative duty of care [Horsley v. MacLaren]
IN GENERAL, 5 CONDITIONS THAT BRING ABOUT AN AFFIRMATIVE DUTY OF CARE:
1. Relationships of Economic Benefit (Jordan House)
2. Relationships of Control/Supervision (Parents/teachers, or even boat captains: Horsley).
3. Creation of Dangerous Situations (Oke)
4. Reliance Relationships (Zelenko)
5. Affirmative duties arising through Statute (ORourke v Schact)
GOVERNMENT LIABILITY
You dont generally find a duty of care with government [Kamloops failed home inspection; house sunk]
o However, you can sue for bad faith policy or negligent operation [Cooper v Hobart]
o Onus on the D to give policy reasons as to negate duty of care [Cooper v Hobart]
Is the Govt position based on a) an administrative decision; b) an expert or professional opinion; c) technical
standard of care? [Just v. B.C.]
Govt has no duty if a) liability is exempted by statute; b) theres a valid policy reason (i.e. budgetary) [Just v. B.C.]
Judges and justices are statutorily immune from liability [Sirros; Toews]
OCCUPIERS LIABILITY
Historically, OL applied only to static condition of property, not activities occurring on the property
4 categories of entrants
o Trespasser (there without permission)
Standard of care: not to wilfully injure the trespasser or act in reckless disregard for their safety
Morphed into: you must treat trespassers with humanity
o Licensee (permission of occupier; not visiting for business i.e. a friend)
Standard: to prevent harm by concealed dangers
o Invitee (lawful visitor; stands to gain economic benefit i.e. a customer coming into a store )
Standard: just avoid unusual danger
o Contractual Entrant (contracted and paid for right to enter i.e. a mailman, plumber)
To make that person as reasonably safe as possible
o If a P is injured on the occupiers land, occupier liable unless a defence to negligence can be raised.
[Waldick]
OLA not meant to displace defence of voluntary assumption of risk [Waldick]
Occupiers Liability Act
o An occupier of premises owes a duty to every visitor on the occupiers premises to take such care as
in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in
using the premises for the purposes for which the visitor is invited or permitted by the occupier to be
there and is permitted by law to be there.
**Duty of care is assumed, SOC provided by statute
Statutory breach = automatic finding of liability, unlike regular old negligence law
Also prescribes a positive SOC--you must take action to ensure the safety of your premises
o Definitions you can be an occupier w/o being an owner or possessor; you just need responsibility and
control over the premises
o s.6 Act applies to activities on the premises
o s.6.1 some people will be considered prima facie trespassers unless they meet the standards of this
section
o s.7 equivalent to s.4(1) of Ontario Act; defence of voluntary assumption of risk
o s.8 liability under the Act can be modified reasonable steps to give notice required
o s.12 no duty of care to trespassers unless occupier creates unusual risk
2

o
o
o

s.13 child not defined

s.14 liability for personal property separate from liability for bodily harm (under Ontario Act theyre
covered together)
s.15(1) specifically includes Contributory Negligence Act

ECONOMIC LOSS
Was the damage to the P economic, rather than personal?
FATAL ACCIDENTS ACT
When the death of a person has been caused by a wrongful act, negligent or default that would, if death had not
ensued, have entitled the injured party to maintain an action and recover damages, the pure economic loss that
is recovered can go to the benefit of the survivor as defined under the act.

PURE ECONOMIC LOSS

occurs only when the harm is PURELY economic its not tied to damage to person/property
For all except relational loss, recovery is possible upon establishment of category-specific duty of care (see
chart)
Recovery for contractual relational economic loss is presumptively excluded (presumption against recovery),
subject to categorical exceptions
o New categories for recovery under PEL can be found using Anns test [Martell]
Negotiations: No recovery of PEL when parties are negotiating in their own interests too much regulation
required [Martell]
Policy reasons to limit recovery: possibility of indeterminate liability; the difference between social loss and
transfer of wealth; and the relevance of existing and potential contractual allocation of loss.

NEGLIGENT MISREPRESENTATION
Special proximity analysis under the Anns test [Hedley Byrne; Queen v Cognos]
o Is P foreseeable?
o Was the statement inaccurate, false, or misleading?
o Was the statement made negligently? (consider the context: boardroom vs. cocktail party)
o Is there reasonable reliance on the statement under the circumstances? Is there special expertise?
[Hercules Management]
Test for reasonable reliance
If representations are intended for one thing, but are used for something else, no
reasonable reliance.
Reasonable foreseeability of reliance (proximity) determined by Anns.
o Did the statement cause harm?
o Devlin: if the facts lend themselves to characterize the conversation as akin to a K, that will be sufficient
Did D make a statement w/o a contract or knowing what the info would be used for? If yes, then no duty of
care [Hedley Byrne]
NM is not restricted to professionals that specialize in giving advice [Nelson Lumber]
NEGLIGENT PERFORMANCE OF SERVICES
Test [Hofstrand Farms]: Was there reliance? Was D aware of Ps reliance? Was there an assumption of risk by D?
If no to any, no liability on the D
o Note: Contractual privity is helpful
Policy factors in play indeterminacy
Lawyers carrying out an activity for the benefit of the third party owe a duty of care to third party [Ross]
DEFECTIVE PRODUCTS OR BUILDINGS
Test: product should be actually dangerous and that danger should be hidden (to negative the presumption of
caveat emptor) [Winnipeg Condo]
Real Property: D will be liable for cost of repairing defects due to negligence in construction [Winnipeg Condo]
o Test: 1) foreseeable that failure to take care will create defects; 2) defects pose real and substantial
danger; 3) can anything negate the damage? (waiver, caveat emptor) BOP on P [Winnipeg Condo]
Chattels: D wont be liable for cost of repair and ordinary lost profits [Rivtow Marine - crane]
The conflict between these cases may be resolved by distinguishing between real property [Winnipeg Condo]
and chattels [Rivtow Marine]
INDEPENDENT LIABILITY OF STATUTORY PUBLIC AUTHORITIES
A statutory public authority is given discretion to inspect a building construction
o It either fails altogether to inspect or inspects in a manner which the court finds unreasonable
o As a result, a latent defect goes undiscovered
o When the defect is discovered, the owner sues the authority to recover the cost of remedying the defect
4

RELATIONAL ECONOMIC LOSS

consequent on physical damage to a third party
La Forests Exclusionary rule: there shall be no liability for relational losses except in rare cases where public
policy supports recovery [dissent in Norsk; adopted in Bow Valley; affirmed in Martel]
o Exceptions
Claimaint has a proprietary interest in the damaged property
General average contribution cases
Joint venture
Joint venture = joint business w/ common goals and methods [Martell Building]
o McLachlin test for a joint venture [Norsk]
Physical proximity
Causal proximity
Circumstantial proximity
Assumption of responsibility
o Note: the exceptions are not closed: If the duty does not fall into one of the exceptions, Anns can serve
to create new category
Anns
Whether the relationship between the plaintiff and defendant were sufficiently proximate
to give rise to a prima facie duty of care
whether, if such a prima facie duty existed, it was negated for policy reasons and
recovery should be denied
o Exclusionary rule (dissent in Norsk) and Anns test will likely end up with the same conclusion when
determining proximity for REL. [DAmato]

STANDARD OF CARE?
What is the standard of care?

Test for standard of care (objective): what would a reasonable person do? [Vaughn v. Menlove haystack]
[Blyth v. Birmingham fire hydrant] societal standard, not case by case
o Test for determining what is reasonable [Bolton v. Stone]
Magnitude of risk
Gravity of consequences
Risk of occurrence low, but gravity of damage high [Bolton v. Stone] [Blyth v. Birmingham]
Difficulty of remedial measures
Very expensive: [Bolton v. Stone]
Impossible (best possible steps taken): [Blythe v. Birmingham]
End to be achieved (utility of conduct)
o Risk of greater harm is relevant; a known risk of greater harm increases the SOC in relation to that
plaintiff/person [Paris v Stepney Borough Council]

CUSTOM [Waldick v. Malcolm icy sidewalk]

Did the Defendant create an unreasonable risk by relying on custom?
Did the Plaintiff rely on custom that the Defendant breached?
STATUTORY STANDARDS
There is no tort of statutory breach!!
Does the statute create a standard of care?
Does breach of a statute create negligence per se (industrial safety statutes) or is it mere evidence of
negligence? [R. v. Sask. Wheat Pool]
o SCC has said mere evidence, but you could argue more (prima facie evidence, or negligence per se)
What is the intention of the statute? [Gorris v. Scott - sheep]
Compliance with statutes may not protect Defendants from liability [Ryan v. Victoria (City)]
o Compliance may be enough with more specific statutes
o more general statutes may require a higher standard of care
EMERGENCY
Alters the standard of care: negligence is not sufficient; must be gross negligence [Emergency Medical Aid Act]
CASES LOWERING THE STANDARD OF CARE
Children
o Test for Childrens Standard of Care [Heisler v. Moke]
Consider the age, intelligence, experience of the child
Ask, what would a reasonable child of that particular age, intelligence, and experience be
expected to do and foresee in those circumstances?
o Parents: may be held liable for their children, but not vicariously liable [Ryan v. Hickson]
some jurisdictions have Parental Responsibility Acts which hold parents liable unless they can
prove no fault (Ontario)
o Exceptions: when operating a car, boat, airplane, children will be held to an adult standard [Dellwo v.
Pearson] [McErlean v. Sarel]
children engaged in adult activities are subject to the adult SOC (Ryan v Hickson, McEllistrum v
Etches)
Mental incapacity (Note: no SCC ruling on this issue)
o Test for Mental Incapacity: not required to meet the standard if: [Fiala v. Chechmanuk]
If a person had no capacity to understand or appreciate the duty owed, OR
they were unable to discharge that duty because they had no meaningful control over their
actions
o Distinguishing case: if driving a motor vehicle, held to the same standard as other drivers [Wenden v. Trika]

CASES RAISING THE STANDARD OF CARE

Professionals usually subject to higher SOC (Challand v Bell; Wilson v Swanson, SCC 1956)
Doctors:
o Test for Doctors Standard of Care [Challand v. Bell]
Surgeon possesses the skill, knowledge and judgment of the average doctor
Average based on the special group to which he belongs i.e. Rural v. urban.
If the decision resulted from exercising average standard, no liability for an error in judgment.
o Same standard for new doctors. [Miles v. Judges]
o Interns held to the standard of a reasonably competent intern (junior doctor). [Aldana v. March]
o Lack of resources not a Defence. [De Vos v. Robertson]
o Duty to Disclose (Modified objective test) [Reibl v. Hughes surgery/stroke] [Arndt v. Smith]
must disclose inherent and special risks what would a reasonable person in Plaintiffs position
have wanted to know?
Dissent in Arndt: suggests strict subjective test is preferred (what would Ms. Arndt have
wanted to know, not a reasonable person in her position).
o Doctors may fail on the standard of care, but that breach may result in no causation. [Ciarlariello v.
Schacter] [Halkyard v. Mathew] see Causation for tests.
o Aside: BATTERY Restricted by Reibl: now battery only for a) no consent; b) fraud; c) treatment going
beyond consent; consent may be withdrawn at any time [Ciarlariello]
Lawyers: [Brenner v. Gregory]
o Fundamentals of professional negligence apply to all professionals
o What would an average lawyer do?

Was there a breach of the standard of care?

CAUSATION
Did the breach or negligence cause the damage? What in fact caused the damage?

But For Test: But for the Defendants breach of the standard of care, would the Plaintiff have suffered the
damage? [Athey v. Leonati Canadian application of Smith v Leech Brain]
Principles of causation [Athey v. Leonati herniated disc]
o Multiple concurrent tortious causes = apportionment
o Divisible injuries Defendants responsible for injury(s) they cause.
o Future events considered if not mere speculation.
o Intervening events if damage would have been otherwise caused, damages adjusted.
o Thin-skull Defendants take the Plaintiff as they find them.
Once causation for damage established, ask did the damage lead to the loss alleged by the Plaintiff?
[Blackwater v. Plint]

PROFESSIONAL NEGLIGENCE CASES

Medical (duty of disclosure): did the doctors failure to disclose all information cause the damage?
o Subjective/objective test: What would a reasonable person in the Plaintiffs circumstances want to
know before consenting to the medical procedure? [Reibl v. Hughes]
Risks of surgery?
Risks of no surgery?
What are the Plaintiffs circumstances that a reasonable person would consider?
Objective: age, income, marital status
Special considerations: reasonable beliefs, fears, desires and expectations
Given the risks, would the patient have gone ahead with the procedure?
o If disclosure is not reasonably likely to change behaviour of P, then it will be deemed not to have caused
the harm [Arndt v Smith]

Material Contribution: Can the Plaintiff prove, on a balance of probabilities, that the Defendants
negligence caused their damage?

Only use MC after but for test [Walker Estate v York Finch Hospital]
Start with But For Test [Athey v. Leonati]
o materially increasing risk of injury may be considered an injury in and of itself (loss of chance to avoid
injury) [Laferiere v. Lawson]
o Application: what would a particular person in a causal chain have done had the Defendant not acted
negligently? [Walker Estate v. York Finch Hospital]
Evolved in Snell v. Farrell: if the Plaintiff cant prove causation but can show that the Defendant materially
contributed to creating the damage, then the court may infer causation.
o Legal burden stays with Plaintiff, evidentiary burden shifts to Defendant.
Exception [Resurfice v. Hanke]
o Material contribution may be applied if:
impossible to prove causation through but-for (despite negligent behavior by Defendant), OR
Defendant clearly breached duty, exposing Plaintiff to injury
Note: Plaintiff carries burden of proof of causation. (Kauffmann)
o Application: which of two tortious sources caused the injury? [Cook v. Lewis]
o Other jurisdictions have confirmed this exception: U.K. [Fairchild v. Glenhaven Funeral]
o Court loathe to extend the exception: if Plaintiff negligently contributes to damage, exception wont
apply [Lange v. Bennett]
o Refutation of exception:
Defendant may be able to push back but-for and M.C. test [Laferiere v. Lawson]
balance of probabilities was that Defendants negligence didnt cause damage
Note: M.C. is not a way for Plaintiff to get around but-for test [Fairchild v. Glenhaven Funeral]

REMOTENESS & FORESEEABILITY

Was the damage too remote? Was the harm foreseeable to the Defendant? [Hughes; Wagon Mound 1
and 2]

Was the damage reasonably foreseeable to the average person? [The Wagon Mound #1]
o If yes liability; If no no liability
Retreat from Wagon Mound #1
o Thin Skull: Were there secondary injuries that flowed from the original injury? [Smith v. Leech Brain]
Crumbling Skull Rule [Athey v. Leonati]
Goes to remedy, rather than causation
The Plaintiff would have suffered the damage anyway due to pre-existing susceptibility
o Was the particular type or kind of damage foreseeable? [Hughes v The Lord Advocate]
applies even if accident itself is unforeseeable
Not necessary to foresee the circumstances that will bring about the injury; general
foreseeability of type or kind of injury is sufficient [Cote]
Mental injury is covered [Malcom v. Broadhurst; Marconato et al. v. Franklin]
Is the suicide caused by a depression that stemmed from injuries caused by the Defendant?
Liability if the suicide isnt based on a deliberate decision [Corr; Swami (B.C.); Hauk (Ont.)]
Specific consequences arent required; only that some foreseeable damage was possible
[Athey; Canadian adaptation of Smith]
o Possibility of damage rule (rather than probability of damage) [Wagon Mound #2]
Is the risk foreseeable but remote? And is the ability to prevent the risk easy and not costly? If
yes, then no defence against liability
o Psychiatric Damage Rule: Is the injury to a person of normal fortitude reasonably foreseeable?
[Mustapha v. Culligan]
Ordinary fortitude undefined
Mental distress not compensable; recognizable psychiatric injury required [Duwyn v. Kaprielian]
Psych injury flowing from physical injury approved by SCC

INTERVENING FORCES
Was there a new intervening act that interrupted the foreseeability of the injury? [Harris v. TTC]
o If the injury is foreseeable despite the intervening acts, no immunity to the Defendant [Harris v. TTC]
RESCUE
9

Injured rescuers may claim against the person who caused the injury via negligence [Horsley]
o Dissent: If Defendant is negligent and that induces the rescuers action, the duty of care of the
Defendant will flow to the rescuer [Horsley]

DEFENCES
Can the liability of the Defendant be limited?
CONTRIBUTORY NEGLIGENCE
Start with Contributory Negligence Act
o Common law has been updated to reflect the statutory schemes of the provinces [Bow Valley]
o Could the Plaintiff have avoided the accident by acting reasonably? [Butterfield v. Forrester]
o Last clear chance rule: Did the Plaintiff expose himself to the risk of injury? If yes, the Plaintiff is
contributorily negligent. [Davies v. Mann]
Note: Last clear chance has been nullified in some jurisdictions by statute
o Defendant must establish contributory negligence as a standalone defence
The Seat Belt Defence: Plaintiff could contribute to his own negligence by not wearing a seat belt
o Would the Plaintiff have been injured even if he hadnt acted negligently? If yes, then no contributory
negligence on the part of the Plaintiff [Labee v. Peters]
o Some jurisdictions cap damages based on contributory negligence caused by not wearing a seatbelt
[Fowler; Chase]
o Children: If a child Plaintiff is injured in an accident not caused by the Defendant, but the Defendant
hasnt ensured that the child is wearing a seat belt, liability will fall on the Defendant [Galaske v.
ODonnell]
Plaintiff will need to show that not wearing a seat belt has a causal connection to damage
VOLUNTARY ASSUMPTION OF RISK
VA is a complete defence, courts dont like it because it is a complete defense
Injury during the regular course of employment doesnt bar a Plaintiff from claiming damages on the basis of VA
[Hambley v. Shepley]
If Plaintiff waives legal rights without knowing or accepting that theyre doing so, no VA [Crocker v. Sundance]
o Knowledge of risk is not sufficient; there must be an agreement to waive rights [Lagasse]
o VA cant be invoked unless legal liability is expressly contemplated by the parties [Joe v. Paradis]
You accept the normal ordinary and obvious risks when participating in a sport [Murphy]
WAIVER / EXCLUSION CLAUSE
If the P waived his legal rights, he must understand and accept the waiver; if not, exclusion of liability is no
defence [Crocker]
o It must be brought to a partys attention, and must be clear that party understands both physical AND
legal risks [Crocker]
the key way to exclude such clauses is through unconscionabilitythat is, agreements forced by unequal
bargaining power [Tercon]
o Dont assume that an exclusion clause is in just because you see one!!
ILLEGALITY OF PS ACTION
Were the Ps actions illegal? [Hall]
o Illegal actions of P allow for recovery of damages only to make P whole no ability to profit.
Lawful injury (such as incarceration) doesnt allow for recovery of damages [Zastowny]
o Loss of income claim not available to inmates. [H.L. v. Canada]
Public policy rule, designed to protect integrity of the legal system
o

Cannot allow a P to profit from their own wrongdoing [Hall]

10

INTENTIONAL TORTS

Categories of intentional tort arent closed

No defence of remoteness is available in intentional tort
Fundamental principle: a persons body is inviolate [Collins v Wilcock]

Was there an intentional act that caused harm?

ASSAULT
Intentional creation of the apprehension of imminent harmful or offensive conduct. [Mainland Sawmills]

Need not ACTUALLY be able to carry out threat; enough that plaintiff BELIEVED that you were.

Test: if the reasonable person believed that violence was intended and danger was imminent, assault has
occurred [Bruce]

BATTERY
Test for Intention: did the D intend the harmful or offensive act focuses on the act itself and not the
consequences of the act [Wilson v Pringle]
Intentional unwanted touching of another person [Cole v Turner] or something so closely connected to the
person [Morgan]
o Touching need not be direct [Morgan snatching a package]
Even the least offensive touching is battery [Cole v Turner; Collins v Wilcock]
Unwanted content that is considered part of everyday life is not battery [Cole v Turner; Collins v Wilcock]
Battery occurs even if the victim is unaware of the contact [Schwizer v Central Hospital]
Injury need not be sustained [Stewart v Stonehouse]
If a tort is committed intentionally, the tortfeasor will be liable for all consequences stemming from the tort
regardless of foreseeability [Bettel v. Yim]
o Possible to plead intentional tort for intentional action & negligence for unintentional consequences.
SEXUAL WRONGDOING
Generally, these will be tried in battery [Norberg]
Limitation period for sexual wrongdoing cases starts when the harm is discovered or it ought to reasonably have
been discovered [M.(K.) v. M.(H.)]
Sexual harassment is an intentional tort [Lajoie v Kelly]
INTENTIONAL INFLICTION OF MENTAL SUFFERING
Test: Did D act with the intention to inflict mental suffering [Wilkinson; Rahemtulla]
o Rahemtulla test (BCCA McLachlin):
Conduct has to be flagrant and outrageous
Has to be plainly calculated to produce some effect of the kind which was produced [Wilkinson]
Must produce a visible or probable illness [Frame v Smith]
If P is hypersensitive: you take your victim as you find them not on the basis of the reasonable person [Clark]
o you must know or be able to foresee the victims special vulnerabilities if you are to be held liable [Clark]
No limitation for remoteness [Bielitski v Obadiak - rumour]

11

Is there a defence to the intentional tort?

CONSENT
Did the P indicate consent? Did P neglect to communicate that they dont consent? No liability on D [OBrien]
o 2 kinds of consent: actual (implicit/explicit) and constructed
Mutual fights: consent so long as parties adhere to unwritten rules of the fight [Wade v. Martin]
Sports
o some violations of rules in sporting context will be within the scope of consent; some wont. [Agar]
Example of no consent: Deliberate retaliation following a hockey hit
o MB: starting point, all touching in a contact sport is a battery
Defence: if the touching occurs within the rules of the game, its not a battery, then its only a
battery if theres intent to injure
o BC: negligence analysis
What would a reasonable person do in those circumstances?
The cheque may have been reasonable according to the rules, but how it occurred was not
o BC would find liability, MB would not
o Argue both in AB (if the MB approach fails, then in the alternative, the BC approach)
When there is an imbalance of power and the dominant person exploits said power, there is no consent [Norberg]
o Doctor/patient relationship; teacher/student
o To show the exploitation of power community standards test: does the transaction seen as a whole
sufficiently diverge from community standards? [Norberg]
Medical Context:
o If an unconscious patient has made arrangements for care/consent in an emergency situation, and
practitioner knows of those arrangements, practitioner is bound [Malette]
Emergency privilege occurs when [Marshall v Currie removed testicle during hernia op]:
Patient is unconscious
Time is of the essence; AND
Probability that patient would consent if he/she could
possibility of future hazard not sufficient for emergency privilege [Murray]
Minors and Consent: Parents acting in childs best interests may control choice for an infant [Re: Dawson]
SELF DEFENCE
Self-defence must be reasonable and proportional [Crockcroft]
Def must believe force was necessary; being threatened is a good indication [MacDonald]
Killing in self-defence is permissible if its proportionate [R. v. Smith]
Provocation short of assault or threats doesnt justify an assault thats justified on the basis of self-defence [Evans]
Defences of a third person are valid on the same principles as self-defence [Gabriell]
DEFENCE OF PROPERTY
An owner must ask an intruder to depart before a forceful expulsion is permitted. [Green; MacDonald]
Creating a risk to a trespasser impermissible [Occupiers Liability Act; Bird v. Holbrook]
Courts will focus on behavior of the entrant after entry, not how they enter defence must be based on
behavior post-entry. [MacDonald]

12

STRICT LIABILITY
Test for strict liability:
o Has D brought something on to their land that escapes and causes damage to P? D liable [Rylands]
no defence of due diligence
o Is D using property in an ordinary way? If yes, no liability for accidents/wrongful acts of 3rd parties [Rickards]
Ordinary use is determined by time, place and circumstances, not excluding purpose [Gertsen v.
Municipality of Metropolitan Toronto]
o escape + non-natural use of land [Read]
Escape: escape from a place which the defendant has occupation of, or control over, to a place
which is outside his occupation or control [Read]
Non-natural users: 1) Use that involves a higher than normal risk of injury; 2) Use thats out of
the ordinary, unusual. [Read]
Water being used commercially is a special use [Weis Western Wear]
o Example: crop dusting that drifted on to Ps land [Mihalchuk]
Rule not confined to landowners but made the owner of a dangerous thing liable for any mischief thereby
occasioned; and it was immaterial whether damage be caused on or off the defendants premise [Dokuchia v.
Domansh]
Defences
o Consent of P: express or implied
When there is no benefit to P, court less likely to imply consent
Even when there is some benefit, P is entitled to the protection of strict liability if P does not consent
o Default of P [Rylands]
Like contributory negligence and supported on the same grounds- whether contributory negligence
legislation apply is not clear
o Act of God [Rylands]
meant to encompass not every storm or rainfall but only the extraordinary phenomena of nature
which cannot be foreseen
o Deliberate Act of a Third Party [Rickards]
If a defendant can prove that the escape in question was caused by a third persons conscious act of
violation, the defendant will be exempted from strict liability
Must be done deliberately
If third party foreseeable or could have been prevented, may still be strictly liable
o Legislative Authority
Where an activity is authorized by legislation, no strict liability is imposed unless the defendant is
found to have been negligent [Vaughan v. Taff Valve Railway Co]
The traditional rule is that liability will not be imposed if an activity is authorized by statute and the
defendant proves that the nuisance is the inevitable result or consequence of exercising that
authority [Ryan v. Victoria (City)]

13

VICARIOUS LIABILITY
a species of strict liability; making someone liable for tort damage caused by another
An employee/employer relationship can attract vicarious liability
o independent contractors dont share the same relationship, so employers wont be vicariously liable. [Sagaz]
o Test: what is the degree of control the employer has over the tortgeasor? [Sagaz]
Factors to determine if the actor is an independent contractor? [Sagaz]
control; does the worker provide their own equipment; do they employ their own
helpers; whats the degree of financial risk taken by the worker; whats the degree of
responsibility for investment and management held by the worker; can the worker profit
from their opportunity?
o Foster families treated as independent contractors [K.L.B. v. B.C.]
Dissent: foster care is an enterprise that materially increases risk
Policy considerations for VL [Sagaz]
o Remedy for P
o enterprise liability
Enterprise liability: does the employers enterprise create a risk? Is the risk significantly
increased by assigning duties to an employee? If yes, employer may be VL for employees
acting in their employment [Basley]
No special exemptions for non-profit organizations. [Basley]
If tortious activities of employee dont stem naturally from employment and employer
has acted responsibly, no liability on employer [Jacobi]
o tortfeasor liability undiminished
o deterrence of future harm
Salmond Test to determine vicarious liability:
o Employers are vicariously liable for
Employee acts authorized by the employer; OR
Unauthorized acts so connected with authorized acts that they may be regarded as modes
(albeit improper) of doing an authorized act
o Check for precedent
o If no precedent, determine whether vicarious liability should be imposed in light of the broader policy
rationales
whether risk creates or exacerbates the wrong
Whether the wrongful act is sufficiently related to conduct authorized by the employer.
When considering sufficiency of connection, can look at subsidiary factors.
Non-delegable duties:
o Employers duty to safety of workers [Wilsons & Clyde Coal Co. v. English]
o Government duty to maintain highways [Lewis (Guardian ad litem of) v. British Columbia]
o Intrinsically dangerous work cannot be shifted to independent contractors [Scarmar Constructions v.
Geddes Contracting]

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DEFAMATION

This a strict liability offence

o Theres no need to prove that the statement was false, actual loss of esteem
o Just show that the people who heard the statement held the P in lower esteem, or prove that they knew
the statement was false

Has there been a defamatory statement? (Murphy v LaMarsh)

Can be oral words as well as written words

o There used to be a distinction between libel and slander the approach now is to treat them all as
defamatory statements
The difference is reflected in damages
Slander (oral): will be of less weight
Libel (written): will be of more weight because it can spread anywhere
o Doesnt just have to be word, can be photographs, drawings, movies, etc.
type of media doesnt matter

CONTEXT IS CRITICAL
The statement will depend on the community of the person and the context it was said in
o A positive statement, through context, could become defamatory
i.e. Tom Jones makes a lot of money and he was an amateur athlete could be defamatory
o Statements made in anger hold less weight.

Has the defamatory statement been directed at the P? (Murphy v LaMarsh)

Test: would a reasonable person acquainted with the P believe that the words referred to the P?
o The P must be an identifiable person or specific group

Has the defamatory statement been publicized to more than one other person? (Murphy v LaMarsh)

If no, then just a conversation

What about esteem?

Esteem of the P doesnt actually have to be effected its enough that a reasonable or right thinking person
WOULD hold you in lower esteem

2 TESTS (OBJECTIVE)
Historical test: would the statement have the effect of lowering esteem or respect for the person in the minds of
persons who are right-thinking members of society? [Botiuk v Toronto Free Press]
Alternative test (emerged more recently - preferred): would the statement have the effect of lowering esteem or
respect for the person in the minds of ordinary or reasonable members of the public? [Murphy v LaMarsh]
o This opens protection to Ps up a little wider

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Does the D have a defence?

TEST FOR PRIVILEGE
Media cant invoke absolute or qualified privilege
Absolute privilege: complete defence; no liability whatsoever
o Applies to
parliamentarians (i.e. statements made in the HOC)
Statements made in a courtroom includes the judge, witnesses, counsel, etc.
Statements made between the client and the clients lawyer, except in the case of terrorists
Senior police members
Communication between spouses
o Its in the public interest to privilege these people in these contexts
Qualified privilege: extends to publication fairly made by a person in the discharge of some public or private
duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned
provided there is no malice
o person must have an interest or duty to convey the material to a person who had a reciprocal
interest or duty to receive it (objective test)
People in associations (i.e. community association)
Creditors (i.e. creditors of a debtor claiming bankruptcy)
Members of a trade or profession (i.e. members of the bar association)
o Must be some compelling policy reason to allow that statement to be made
o Receivers must be a limited group
o Closely held common interest
TEST FOR DISSEMINATOR DEFENCE
Defamation requires knowledge or suspicion that material contained defamatory statements or suspicion of
material (this is if youve heard it 3rd or 4th hand)
o This defence has sprung out of necessity for journalists they cant fact check everything
TEST FOR FAIR COMMENT (APPLIES MAINLY TO MEDIA) (WIC RADIO LTD V SIMPSON)
Comment must be made in the matter of the public interest
The comment must be made on known and provable fact
The comment must be recognizable as a comment or opinion(inferences of fact ok).
Could a reasonable person honestly express that opinion on the proven facts? (objective test)
TEST FOR RESPONSIBLE COMMUNICATION OF A MATTER OF PUBLIC INTEREST (GRANT V TORSTAR CORP)
the matter must be one of public interest.
D must show that he acted responsibly and showed diligence in attempting to verify the allegedly defamatory
comments, having regard to the totality of the circumstances.
o In determining whether the D acted responsibly, consider
Seriousness of the allegation
Public importance of the matter
Urgency of the matter
Status and reliability of the source
Whether the Ps side of the story was sought and accurately reported
Whether inclusion of the defamatory statement was justifiable
Whether the defamatory statements public interest lay in the fact that it was made rather than
its truth
Note: jury determines whether the defamatory statement had to be made and if it was made responsibly by D
o Irresponsible false statements will not pass the test, but responsible factually wrong statements will
pass the test
DEFENCE OF ACCIDENTAL PUBLICATION Publication must be deliberate
TEST FOR JUSTIFICATION (THE TRUTH)
Substantial truth test: every single word in the statement doesnt have to be true to plead the truth defence, just
so long as its substantially true
CONSENT
NOT DEFENCES
no intention to defame
took reasonable care to find the truth
didnt know what these words meant or that didnt intend for the words to refer to the P

Can the P be awarded damages?(Hill v Church of Scientology of Toronto)

Test for awarding aggravated damages: when the defamatory statement is particularly high handed and
oppressive, to increase the humiliation and/or anxiety of the P (malice was intended)
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Test for awarding punitive damages: is the conduct of the D so outrageous that the punitive damages were
rationally required to deter the D from doing this again?
o Punitive damages are not compensatory: they are intended to punish

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