Torts – Introduction to Tort Law

● Tort - A civil wrong for which the remedy is a common law action for unliquidated damages
and which is not exclusively the breach of a contract or some other equitable obligation
● Tort law allows a party that wasn’t part of a contract to sue another party
● Seeks to promote prudence - fundamentally about concern for others and the public at large
- duty to take reasonable care to ensure others are not harmed
● Tort law is a civil injury or wrong
● The goal of tort law is ultimately to place the plaintiff back in the position they were in
before the harm and had the harm not occurred

Unintentional Torts
● Negligence: a tort in which a business or individual commits a careless act that results in
unintended harm to another
● Product liability: careless design of a product or distributes goods that injure others
● Occupiers’ liability: failing to keep premises safe for consumers and visitors (ice/salt)
● Professional negligence: professional causes harm or loss while performing their job

Direct and Intentional Torts

Accidental, Negligent and Intentional

● Accidental: if Ds acts produces consequences that were not reasonable foreseeable or
preventable, those acts may be seen as accidental (strict liability)
● Negligent: if D ought to have reasonably foreseen and avoided the result produced by their
conduct, the Ds failure to do so may be seen as negligent (negligence)
● Intentional: if D acts either knowing with substantial certainty what the consequences of
conduct would be or desires them then D acted intentionally (intentional torts)

Volition and Capacity

Volition and Capacity/Intentional Tort (Not Found) - Child Does Not Have Capacity to Form Intent
and Appreciate Consequences of Act (Under 7)
TILLANDER V GOSSELIN 1967 ONT
Facts ● Infant defendant, less than 3 years old, removed a baby from her carriage
and dragged her 100 ft, fracturing her skull and causing brain damage

Issue ● Can an infant of 3 years old be held responsible in damages in the above
circumstances? NO

Reason ● A child of such age cannot be guilty of negligence – lack sufficient judgement
to exercise the reasonable care expected
● An act of a 3 year old cannot be said to be voluntary – child does not have
the mental ability to appreciate or know the real nature of the act – cannot
form the genuine intent necessary to justify an action for assault

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 Ratio ● A child does not have the capacity to form the genuine intent and to
appreciate the consequences of the act, a child could not have committed
an intentional tort of assault.
● Courts have typically found that a child under the age of 7 is not able to have
capacity.

Volition and Capacity/Intent (Not Found) - Mental Illness - Act Not Voluntary and Unable to Form
Intent and Appreciate Consequences of Act
LAWSON V WELLESLEY HOSPITAL 1975 ONCA
Facts ● Patient at a hospital sued hospital for injuries sustained from an attack by a
psychiatric patient with a history of violent conduct
● The action was based on an alleged breach of contract by the hospital to
provide care and protection to the plaintiff and on negligence of the hospital
for failing to supervise the patient

Issue ● Is a mentally ill person able to form intent to assault a person? NO

Decision ● Action barred by s.59 of the Mental Health Act - patient incapable of
intending to commit a tort

Reason ● An essential element in the tort of assault is that there be a voluntary act, the
mind directing that act (intent)
● Where a person, by reason of mental illness is incapable of appreciating the
nature or quality of his acts, such person has committed no tort since the
intention, is missing.

Ratio ● Where a person, by reason of mental illness, is incapable of appreciating the

nature or quality of their acts, such person has committed no tort since the
intention, an essential element of the cause of action of assault, is missing

Intentional Torts – Assault and Battery

● In tort law, an assault is a threat of imminent physical harm while a battery is harmful or
offensive direct physical contact (usually claimed together)

Assault (Applied) - Threatening Words and Threatening Act = Assault, Even if No Physical Contact-
Plaintiff Have Reasonable Fear of Imminent Harm
STEPHENS V MYERS 1830 UK
Facts ● Plaintiff was chair at a meeting
● Defendant also sitting at meeting – things get heated – defendant is told he
should leave the meeting – defendant responds by saying he would rather
pull chairman out of the chair than be turned out of the meeting – D at same
time clenched a fist toward the plaintiff but was stopped by another member

Issue ● Was an assault committed? YES

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Reason ● It is not every threat, when there is no actual personal violence, that
constitutes an assault, there must, in all cases, be the means of carrying the
threat into effect
● If the blow had not been stopped, would it have almost immediately reached
the plaintiff? Does not matter that he was not near him if he was advancing
with intent
● He was advancing with an intent to strike the plaintiff
● Need more than mere words – words of a threatening nature must be
combined with a threatening act – but that act does not have to touch the
plaintiff

Ratio ● A plaintiff with a reasonable fear of imminent harm may establish the tort of
assault
● There must be means of carrying the threat into effect - words of a
threatening nature must be combined with a threatening act

Assault (Applied) - Enough for Plaintiff Believe on Reasonable Grounds They Are in Danger of
Violence - Does Not Matter if There is Actual Intention or Power to Use Violence
BRUCE V DYER 1970 ONCA
Facts ● Plaintiff and defendant engage in driving wars along a highway
● P blocked D on the road and emerged from his vehicle waving his first
● Eventually both exit vehicle and a fight ensues
● D fractures Ps jaw
● D claims self defence as Ps conduct on the highway was an assault

Issue ● Did the P assault the D? YES

Reason ● When the plaintiff first blocked the D on the road then emerged from vehicle
waving his fist, D had reasonable grounds to believe he was about to be
attacked and it was necessary for him to take against to protect himself
● The initial blocking action constitutes an assault – he took active steps to
block the D (rather than simply parking his vehicle which later ended up
blocking D)

Ratio ● It is enough for the plaintiff to believe on reasonable grounds that they are in
danger of violence – does not matter if there is actual intention or power to
use violence

Assault (Applied) - Enough for Plaintiff Believe on Reasonable Grounds They Are in Danger of
Violence - Words Coupled with Aggressive Actions of Defendant = Assault
MAINLAND SAWMILLS V USW LOCAL 1-3567 2007 BCSC

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Facts ● Labour dispute at a mill terminated by back to work legislation
● Before legislation was passed, one local advised its members they could
return to work and they went back
● Second local (I-3567) told its members NOT to return to work until the
legislation was passed in the provincial legislature.
● Members of the second union upset members of first returned to work
“prematurely”

Issue ● Did the defendants commit an assault by their conduct in the sawmill? YES

Reason ● Here, all of the plaintiffs from the afternoon shift were verbally threatened
and as a crowd entered the same premises banging sticks, shouting and
swearing at the plaintiffs to leave constituted a positive action that showed a
clear and present ability and intention to use physical force
● Verbal threat in context of a large and noisy crowd, some with sticks, is also
sufficient to constitute an assault – it was reasonable for the Ps to fear or
apprehend imminent violence
● Actions of D constitute a positive action, in addition to any words or threats,
that showed a clear ability and an intention to use physical force.

Ratio ● It has been described as intentionally causing another person to fear or

apprehend imminent contact of a harmful or oppressive nature – it does
not matter if the defendant did not have the actual ability to cause harm as
long as a reasonable person would have felt threatened – plaintiff need not
have been hurt as long as the harm was apprehended

Assault (Applied) - Internet Threats Case - Frightening or Threatening Someone is Not Assault Unless
Event Feared is Imminent
WARMAN V GROSVENOR 2008 ONSC
Facts ● P seeks to stop Ds campaign of terror against him via internet
● The postings and the e-mails have continued for over two years. They have
persistently expressed hatred and anger and have called on others to act
against the plaintiff, to try to get him evicted and to make him a target of
violence.

Issue ● Did the actions of the defendant amount to the tort of assault? YES
● Does the plaintiff have a reasonable apprehension of an imminent physical
contact that constitutes assault? YES

Reason ● They are not general threats. They are threatening and intimidating and by
virtue of their repetitiveness, their detail regarding the plaintiff's
whereabouts and their level of malevolence, they are more than mere
empty threats and insults.
● They are vicious and serious and are to be taken seriously.
● They have made the plaintiff apprehensive of imminent physical harm and

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 reasonably so, particularly in the context of the wide publication of the
postings on the Internet and the very real possibility that someone will, as
they have in the past by contacts with the management of the plaintiff's
residence, act on the defendant's repeated invitations to others to find the
plaintiff and inflict serious physical harm on him.

Ratio ● Frightening or threatening someone is not an assault unless the event feared
is imminent.

Battery (Applied) - Intentional Wrongdoer Can Be Held Liable for Consequences They did Not Intend
(Shaking Plaintiff Was Intended but Not Striking the Nose) - TEST for Intentional Torts
BETTEL V YIM 1978 ONT
Facts ● P and friends threw lighted matches into Ds store and one caused a bag of
charcoal to ignite
● D grabbed the P with both hands and while shaking him Ds head strikes Ps
nose causing serious injury
● D shook the P to force a confession but had no intention to injure the
plaintiff in the manner that happened but he did intent to grab and shake
him

Issue ● Can an intentional wrongdoer be held liable for consequences which he did
not intend? YES

Ratio ● If physical contact was intended, the magnitude of that contact exceeding all
reasonable or intended expectations should make no difference – this offers
most full and just protection to the plaintiff
TEST:
● In intentional torts, the test is whether the D was guilty of deliberate,
intentional and unlawful violence or threat of violence, if D was and a more
serious injury occurs to P than intended, the D must bear the responsibility
for the unintended result

Sexual Battery (Applied) - Plaintiff Only Needs to Prove Direct Interference With Her Person, Does
Not Need to Prove No Consent - Defendant Has Onus of Proving Consent as Defence
NON-MARINE UNDERWRITERS, LLOYD’S OF LONDON V SCALERA 2000 SCC
Facts ● The P who alleges sexual battery makes her case by tendering evidence of
force applied directly to her – force here refers to physical contact of a sexual
nature

Issue ● Does the plaintiff have to prove that they did not consent to the action that
took place? NO

Reason ● The court found that it was not appropriate for the plaintiff to have to prove
that there was no consent

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 ● This is because battery is about protecting the Ps physical autonomy rather
than fault – compensation stems from violating that right not from fault – so
P should only need to prove the direct interference (and not have to also
prove D was at fault)
● Burden is then on D to prove defence – consent is one defence
● For battery in the general sense, the onus is on the plaintiff to prove the tort,
then the onus shifts to the defendant to prove such defence if a defence is
available

Ratio ● In cases of battery of a sexual nature, the plaintiff in a battery action must
prove direct contact (but does not bear the onus to prove no consent), at
which point the onus shifts to the defendant to prove consent in order to
escape liability.

Direct and Intentional Torts

1) Intentional Infliction of Mental Suffering (TEST)

● Plaintiff must meet three elements:
1) the Ds acts were extreme, flagrant and outrageous
2) the specific acts were calculated to produce harm, and
3) the specific acts caused harm
● The harm does not need to be a recognized psychiatric illness (Saadati v Moorhead)

Intentional Infliction of Mental Suffering (Found) - Test for Intentional Infliction of Mental Suffering -
Husband Friend Making Joke that Husband Lying on Street and Has Broken Legs
WILKINSON V DOWNTON - 1897 UK
Facts ● D (husband’s friend) in committing a practical joke, represented to the P that
he was told by her husband to tell her that he was smashed up in an accident
and he was lying on the street with two broken legs and needed her to bring
him two pillows
● None of this was true and the effect of this news on the P was a violent shock
to her nervous system that produced vomiting along with other serious
physical consequences

Issue ● How far removed was the reaction? Is the connection between the cause and
effect sufficiently close and complete? YES

Reason ● Court recognizes a cause of action where there a wilful act calculated to
cause physical harm and has in fact thereby caused her harm
● Intention to produce harm here is imputed since it would be difficult to
imagine that such a statement being made suddenly and with seriousness
would not cause such grave effects

Ratio TEST: Plaintiff must meet three elements:

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 1) the Ds acts were extreme, flagrant and outrageous
2) the specific acts were calculated to produce harm, and
3) the specific acts caused harm

2) False Imprisonment
● Where the defendant unlawfully restricts the freedom of the plaintiff (need not
be jail but there must not be a reasonable alternate way out)
● Can also include psychological imprisonment

False Imprisonment (Not Found) - Only Prevented from Going In One Direction, Had Other
Reasonable Alternative Ways Out
BIRD V JONES 1845 UK
Facts ● Police orders prevented P from going in a particular direction on a public
highway but he could go in any other direction
● P argued that they are stopping him from going in a direction and that is
imprisonment

Summary ● P prevented from going in one direction but had other reasonable alternative
ways out, therefore, not imprisonment

Issue ● Does preventing the plaintiff from moving in one direction constitute
imprisonment? NO

Reason ● A prison may have a boundary that prevents the person imprisoned from
leaving that place by means other than breach
● Here, the party could travel in another direction so precludes the notion of
imprisonment – dissent felt that this shouldn’t matter

Ratio ● If there is a reasonable alternative other way out for the situation you are in,
then it is not imprisonment because you have the ability to leave

3) False Imprisonment

False Imprisonment (Found) - Exception to Bird v Jones - Plaintiff Under Impression/Feel there is No
Way Out (Shop Keeper Detaining People Case)
CHAYTOR V LONDON, NEW YORK AND PARIS ASSOCIATION OF FASHION LTD 1961
NEWFOUNDLAND
Facts ● Ps were employees of department store
● Went across street to Ds department store, a competitor, to do some
comparison shopping
● Manager catches them and calls the police who detained them for 15
minutes – Ps complied out of fear
● Ps sued for false imprisonment

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 Issue ● Can someone have an action for false imprisonment even if there is a
physical way out, but they have reasonable fear around leaving? YES

Reason ● Close watching of competitors is normal commercial practice (any other

member of the public would have access to the store)
● Here, rushing to call the police without taking less intrusive measures was
not appropriate nor necessary
● Psychological imprisonments – Ps cooperated and went to the station out of
fear of embarrassment – if they went voluntary, was it truly voluntarily if
they felt that had no choice?

Ratio ● False imprisonment is not confined to not having a physical way out. Same
with the criminal perspective, if you feel like you can’t leave because of
psychological ‘restraint’ then that’s false imprisonment

4. Invasion of Privacy

Invasion of Privacy (Found) - TEST for Invasion of Privacy - Defendant Working at Bank Looking at
Plaintiffs Financial Records
JONES V TSIGE 2012 ONCA
Facts ● D was working at a bank and looked at Ps financial records

Issue ● Was this an invasion of privacy? YES

Reason Test:
1) Ds conduct must be intentional (includes reckless)
● It was repeated 74 times/repeated behaviour
● D did not just come across it by accident
2) D must have invaded, unlawfully Ps private affairs or concerns
3) A reasonable person would regard the invasion as highly offensive causing
distress humiliation or anguish
● Highly offensive includes intrusion into financial records, health
records, sexual practices and orientation, employment, diary or
private correspondence
● Repeatedly examining bank records was an intrusion upon seclusion

Ratio ● Intrusion upon seclusion occurs when one intentionally intrudes, physically
or otherwise upon the seclusion of another of their private affairs or
concerns – the intruder is subject to liability to the other for invasion of
privacy if that invasion would be highly offensive to a reasonable person
TEST:
1) Ds conduct must be intentional (includes reckless)
2) D must have invaded, unlawfully Ps private affairs or concerns
3) A reasonable person would regard the invasion as highly offensive causing
distress humiliation or anguish (Highly offensive includes intrusion into

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 financial records, health records, sexual practices and orientation,
employment, diary or private correspondence)

Defences to Direct and Intentional Torts

Defences to Intentional Torts

1) Consent (medical, sports)
2) Self-Defence
3) Legal Authority
4) Necessity

1) Consent
● When a defendant has committed battery they might argue that they had a void reason to
do so or they had consent
● The burden will shift to the defendant and they will have to negate the claim (defendant
must prove consent)
● The onus is on a balance of probabilities

Consent (Found) - Must Look at Overt Acts of the Plaintiff (Mandatory Vaccine on Ship)
O’BRIEN V CUNARD SS CO 1891 US
Facts ● Plaintiff was vaccinated on a steamship by a surgeon who was administering
vaccinations to all emigrants who desire it and who are not otherwise
protected against smallpox
● There was a requirement that all people coming on the steamship had to
take the vaccine for smallpox
● The plaintiff sues the person who administered the vaccine and violated their
personal autonomy my administering something they did not want
● However, the defendant used the defence of consent

Issue ● Did the defendant assault the plaintiff by administering the vaccine against
her will? NO, there was consent

Reason ● Notices of the ships regulations were posted all across the ship in various
languages
● Nothing on the part of the plaintiff to show that she objected to the
vaccination
● The plaintiff was in this long line of individuals taking the vaccine and she
was able to observe this for many of the people before her and at no point
objected to the procedure taking place in front of her

Ratio ● If the plaintiff’s behaviour was such as to indicate consent on their part, then
the defendant is justified in their act, whatever the plaintiff’s unexpressed
feelings may have been.

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 ● In determining whether she consented, he could be guided only by her overt
acts and the manifestation of her feelings. MUST LOOK AT THE NATURE OF
THE CONSENT.

Consent Sexual Battery - Defendant Bears Burden of Probing Consent // Onus Not on Plaintiff to
Prove No Consent
NON-MARINE UNDERWRITERS, LLOYD’S OF LONDON V SCALERA 2000 SCC
Facts ● Plaintiff in a sexual battery makes their case by tendering evidence of forceful
direct interference with her person
● Plaintiff does not need to prove that defendant knew or ought to know that
she was not consenting

Ratio ● Sexual Battery does not differ from traditional rule that the plaintiff in a
battery action must prove direct contact, at which point the onus shifts to
the defendant to prove consent
● Plaintiff does not need to prove that defendant knew or ought to know that
she was not consenting
● If the defendant does not dispute the contact, then they bear the burden of
proving that the plaintiff consented or that a reasonable person in their
position would have thought the plaintiff consented

Consent Sexual Battery (Not Found) - Consent Must be Genuine - Proof of Inequality and Exploitation
Found (Doctor Prescribing Drugs to Addict in Exchange for Sexual Favours)
NORBERG V WYNRIB SCC
Facts ● Plaintiff became addicted to painkillers
● Defendant, her physician, agreed to provide her painkillers without a
prescription in return for sexual favours

Issue ● Can the defence of consent be raised against a claim for the tort of battery in
this case? NO

Reason ● Two issues: dependency issue (addiction) and power imbalance/exploitation

 NO CONSENT
● Consent must be genuine, it must not be obtained by force or threat of force
or be given under the influence
● Court applied doctrine of unconscionability from contract law and applied it
to tort law. Used to protect vulnerable individuals when they are in a
relationship with unequal power.
● Defendant knew that plaintiff was vulnerable and driven by her compulsion
for drugs and he knew how to assist her medically and he knew that she
could not just quit taking drugs without treatment
● The defendant’s medical knowledge, knowledge of her addiction and
authority to prescribe drugs gave him power over her and abused his power

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 and exploited her weakness to serve his interests

Ratio ● Consent must be genuine, it must not be obtained by force or threat of force
or be given under the influence
TEST:
A two-step process is involved in determining whether or not there has been legally
effective consent to a sexual assault:
1) Proof of an inequality between the parties which will ordinarily occur within
the context of a “special dependency” relationship.
2) Proof of exploitation; often a divergence from normal community standards.

Consent in Sports
● Defence of consent is used in sporting context to justify use of force

Mutual Fight - Consent (Found) - Two Dads Fighting at Kids Baseball Game - If Consent Mutual,
Parties Cannot Complain about Injuries, Unless Excessive Force Used

CHARLAND V CLOVERDALE MINOR BASEBALL ASSOCIATION 2013 BCSC

Facts ● Two dads having fist fight during child’s pee wee baseball game, one of the
father’s bringing an action in assault and battery against the baseball
association.
● Mutual fight case, not sports necessarily

Issue ● Was the fight mutual between the two parties to constitute that consent had
been given by both? YES

Ratio ● If a fight is proven to be mutual or consensual, the parties cannot complain

of injuries suffered in the course of that fight, unless force is excessive or
unnecessary

Consent in Sports - Player Does Not Assume Any and All Risks - Must be Realistic to Nature of Activity
COLBY V SCHMIDT 1986 BCSC
Ratio ● By playing a sport that involves physical conduct, a player does not assume
any and all risks
● Were acts unusual and beyond the scope of ordinary standards of the game?
● Risks assumed must be realistic in regards to the nature of the activity
(Kempf v Nguyen)

Consent in Medical Context (Not Found) - Consent Always Required Except in Emergency Context to
Save Patient - However, JV Patient Made Refusal Via the Card
MALETTE V SHULMAN 1990 ONCA
Facts ● P was Jehovah’s Witness who was injured in a car collision

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 ● She was attended to at the hospital by the D doctor
● P had a card in her purse that forbade any form of blood transfusion under
any circumstances but defendant determine one was necessary and provided
one
● P eventually recovered and sued the defendant for negligence, assault and
conspiracy
● Trial judge found defendant liable for battery and he appealed

Issue ● Did P consent to transfusion? NO, doctor liable to the battery

● Does the advanced refusal alter the doctor’s ability to disregard their
instructions in an emergency? YES

Reason ● Liability here was imposed because the D violated patients rights over her
own body by acting contrary to the card and administering blood
transfusions that were not authorized
● His honest and justifiable belief that the treatment was essential did not
matter
● The right to refuse treatment is an inherent part of a patient’s right over
their own body – it is not premised on an understanding of the risks of
refusal
● Where immediate medical treatment is necessary to save the life or preserve
the health of a person who is incapable of giving consent, the doctor may
proceed without the patient’s consent – the assumption is that the patient as
a reasonable person would want emergency aid
● Here, there was an emergency. However, patient made the refusal to
consent prior to the emergency (via the card)

Ratio ● Informed consent – no medical procedure may be undertaken without the

patient's consent, obtained after the patient has been provided with
sufficient information to evaluate the risks and benefits of the treatment and
other potential options.
● EXCEPTION: Where immediate medical treatment is necessary to save the
life or preserve the health of a person who is incapable of giving consent, the
doctor may proceed without the patient’s consent – the assumption is that
the patient as a reasonable person would want emergency aid

Consent in Medical Context (Not Found) - However, Action of Doctor Justified Because Patient Could
Not Consent and Emergency Situation - List for 3 Types of Medical Consent
MARSHALL V CURRY 1933 NSSC
Facts ● P sued D for $10,000 for removing a testicle during a hernia surgery.
● Marshall (plaintiff) brought damages against Dr. Curry, a surgeon
(defendant), because he removed a testicle without knowledge or consent of
Marshall while he was under anaesthesia for a hernia.
● P consented to hernia surgery but not removal of testicles.

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 ● The need to remove the testicle became apparent during operation and
could not reasonably be ascertained prior to
- D said removal was necessary to cure the hernia and time was of the
essence
● Defendant elicited evidence from three expert surgeons who supported the
necessity of the procedure

Issue ● Was there consent for the removal of the testicle? NO but actions justified
when consent is not available to give in an emergency situation

Decision ● The removal was necessary, despite the absence of expressed and the
possibility of implied assent on the part of the plaintiff
● The conditions made it imperative for the surgeon to operate under
conditions that neither party had anticipated and which the defendant could
not have reasonably foreseen and that in the removal he acted in the best
interests of the plaintiff

Ratio ● Health care professionals may intervene to save patient’s life when consent
is not available to give in an emergency situation
Types of Medical Consent:
1) In the ordinary case where there is opportunity to obtain the consent of the
patient is must be had
2) Such consent by the patient may be express or implied. If an operation is
forbidden by the patient, consent is not to be implied.
3) Consent may be implied from the conversation preceding an operation or
from antecedent circumstances.

2) Self-Defence

Self-Defence (Not Applied) - Defensive Action Must Be Reasonable/Proportionate to the Harm

Inflicted - Onus on Defendant
COCKCROFT V SMITH 1705 UK
Facts ● The plaintiff, Cockroft, who was clerk of the court, ran his forefinger towards
Smith’s eyes during a scuffle in court. Smith bit a joint off of Cockroft’s finger
during the incident

Issue ● Is this self-defence? NO

Reason ● Smith is liable because the force used by biting the plaintiff was too excessive
to what was done to them
● A person may use reasonable force in self-defence and Smith could not
justify biting off Cockroft’s finger.
- If a man strikes another, who does not immediately after strike back,
but at a later time does, self-defence does not apply. If a man suffers
a small assault and then gives a violent or unsuitable assault in

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 return, it is not self-defence.

Ratio ● Must be immediate, reasonable, and proportionate to the harm inflicted

- Onus rests on the person claiming the defence
● Defendant must prove that the occasion warranted the defensive action but
also that the force used was not excessive/unreasonable - must be
proportionate in the circumstances

3) Legal Authority
● Entitles the defendant to engage in conduct that would otherwise be actionable

Legal Authority - TEST for False Imprisonment and Shopkeeping - Sole Purpose for Detaining Must be
to Investigate (Shopkeeper Breached this Requirement)
MANN V CANADIAN TIRE CORP 2016 ONSC
Facts ● P alleged he was falsely imprisoned by staff during a visit to Canadian Tire
● While initially P was detained for purposes of investigation, he was later
detained out of a primary concern to delete the footage on his camera

Issue ● Was the plaintiff unlawfully detained by the shopkeeper? YES

Reason ● All elements to succeed on a defence of false imprisonment as a shopkeeper

were met but one (sole purpose must be to investigate)
● By detaining him for the purpose of investigating the lawfulness of his actions
and deleting the video, defendants acted outside the parameters of the
shopkeepers privilege and committed the tort of false imprisonment

Ratio TEST:
To succeed on a defence to false imprisonment as a shopkeeper:
1) There must be reasonable grounds to believe property is being stolen or has
been stolen from shopkeepers place of business
2) Sole purpose of the detention must be to investigate
3) Detention must be reasonable and must involve the party to participate in a
search to resolve the issue
4) Period of detention should be as brief as possible
5) If detainee refuses cooperation, the store owner may use reasonable force to
detain them pending police arrival

4) Necessity

Necessity (Found) - Had No Other Alternative Means (Defendant Trespassed Plaintiff’s Land Because
Highway Blocked)
DWYER V STAUNTON 1947 ALBERTA
Facts ● P sues for trespass
● Highway was blocked so D drove over Ps farm area against Ps wishes

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 ● P finally allowed D to continue so long as they returned a different way
● While in town D asks around and finds that no other means of returning was
possible so came back across Ps land

Issue ● Did the D have the right to cross over the Ps land given that the highway was
blocked? YES

Ratio ● A traveller lawfully using a public road has the right to go upon private land
at places where the public way is impassable
● In the public interests at large despite private property rights – due regard to
public safety or convenience and immediate urgency
● Must take care in preventing unnecessary damage to private lands -
unreasonable damage to plaintiff’s property will not constitute the defence
of necessity

Private Necessity (Not Found) - Defendant Liable Because Used Plaintiff’s Property to Preserve Their
Own Property - Not Out of Necessity
VINCENT V LAKE ERIE TRANSPORTATION CO 1910 US
Facts ● Vincent’s wharf was damaged after the ship was tied to it after usual
emptying of the ship at its point of delivery, allegedly out of negligence,
when during the storm it was knocked against the wharf over and over.
● D argued that after the discharge of the cargo (aka empty) the wind/storm
picked up to the point that they couldn’t move the vessel and had no choice.
D argues necessity.
● It was necessary for the ship to be tied to the wharf, but after the storm was
over it’s reasonable to expect the D to pay compensation for losses of the P
for the wharf
● Situation where ‘the ordinary rules regulating property rights were
suspended by forces beyond human control’ and any injury is an act of God
not wrongful act of a person
● However, those in charge of the boat deliberately held it in a position so that
the dock was damaged in order to save the ship, and therefore they should
pay back the dock

Issue ● Should the defendant be liable for the damage to the plaintiff’s wharf? YES
● The defendant prudently used the plaintiff’s property to preserve his own
interests (save the ship), the plaintiffs are entitled to compensation for the
injury done.

Reason ● Here, the defendants prudently and with direct efforts held the vessel in such
a position that it damaged the Ps wharf - Ds availed/helped itself of the
plaintiffs property for the purposes of preserving its own more valuable
property, so Ps are entitled to compensation

Dissent ● P assumed risks by entering into contractual arrangement for vessels to dock

15
 at its wharf

Ratio ● Was necessary for the ship to be tied to the wharf, but after the storm was
over it’s reasonable to expect the D to pay compensation for losses of the P
for the wharf

Negligence - Standard of Care

● Negligence is not a state of mind – it is conduct that falls below the standard accepted in the
community
● Proving negligence is fact dependant
● Questions often come down not whether the defendant breached its standard of care
● P must show that D was negligent on a balance of probabilities

Elements of Negligence
Steps that a plaintiff has to prove to establish their claim in negligence:

In any tort, for the defendant to be held liable, the plaintiff must show that the defendant had
volition (voluntary act) and capacity (Tillander v Gosselin)

1) Duty of Care
● There has to be proximity within that relationship in order for a defendant to owe
that duty of care to the plaintiff
● Anns test to establish duty (only if there is no pre-existing duty like doctor)
● Volition and capacity to understand that there is a duty
2) Defendant must have breached that duty according to the reasonable person standard
3) Plaintiff must have suffered a loss or harm
4) That breach must have caused the harm to the plaintiff (CAUSATION)
● The plaintiff must prove causation - the conduct has to be shown to have caused (or
contributed to) that specific loss the plaintiff is claiming - “But for”
● Consider the pre-existing issues
5) The damage must not be too remote
● If the injuries are too remote from the conduct in that the type of harm produced by
the conduct is just not reasonably foreseeable to the defendant
6) The plaintiff’s conduct must not be such that will bar or limit recovery – ie one must explore
defences of contributory negligence, voluntary assumption of risk and illegality
- Defences to negligence:
- Contributory negligence (can be used by the defendant- you have to
explain the plaintiff and the defendants side)
- Voluntary assumption of Risk
- illegality

1) Standard of Care

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 ● Ask: did the defendant’s conduct depart from the standard of care that a reasonable person
would have exercised in the circumstances?

Negligence (Not Found) - TEST = Risk Has to Be Substantial, Not Just Foreseeable - Risk of Damage
Sufficiently Small, Therefore Defendant is Not Negligent for Disregarding Risk/Has No Duty of Care
(Golf Ball Hits Plaintiff on Highway)
BOLTON & OTHERS V STONE 1951 UK
Facts ● Defendants were members of cricket club
● Batter hits ball over fence and strikes plaintiff who was standing on the
highway – 100 yards away from the batter
● No one had been injured in this way in 90 years but on 6 occasions the ball
had hit the highway over 30 years
● Plaintiff sued for negligence
● P argued that the fact the ball had gone over the fence in the past meant it
was a common enough occurrence and therefore created a standard

Issue ● Was there a foreseeable risk that a ball being hit on the road might harm
someone? NO

Reason ● Risk created by playing cricket was reasonable – there was some risk, but it
wasn’t substantial
● Must consider how remote it is that a person might be struck and the
seriousness of consequences is one is struck – is the risk substantial?
● The risk here was extremely small – this is a factual analysis that will be case
by case
- It was 100 yards away and the likelihood of someone on the highway
being struck/harmed was so small - no one was injured in this
particular way in 90 years

Ratio TEST:
● Is the risk of damage to a person on the road so small that a reasonable
person in the position of the defendants, considering the matter from the
safety perspective, would have thought it right to refrain from taking steps to
prevent the danger?
● Risk has to be substantial, not just foreseeable
- When a risk is sufficiently small, it can be disregarded

Negligence (Found) - TEST = Everyone Must Take the Care that a Man of Ordinary Prudence Would
Observe (Reasonable Person Test)
VAUGHAN V MENLOVE 1837 UK
Facts ● Plaintiff owned two cottages
● Defendant owned land with buildings and a haystack near the cottages
● Haystack catches fire and spreads to plaintiff’s cottages which were
destroyed

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 ● Some evidence showed that the defendant had been warned of the risk
posed by the haystack but indicated that they “would chance it”

Issue ● Was the fire the result of gross negligence on the part of the defendant? YES

Reason ● Defendant is bound to act with such reasonable caution as a ‘prudent man’
would have exercised in such circumstances
● A situation of danger was brought to the defendants attention and they
neglected to do anything about it
● When alerted about the potential of danger, a prudent person would have
taken steps to minimize it

Ratio TEST:
● All cases require “a regard to caution such as a man of ordinary prudence
would observe”

Negligence (Not Found) - Defines Reasonable Person

BLYTH V BIRMINGHAM WATERWORKS CO 1856 UK
Facts ● Defendant company installed fire-plug (in best industry practices). The water
system had been working for 25 years.
● There was an exceptionally severe frost (1855), damage to the plug --> then
plaintiff’s house was flooded.
● P sued D’s company for negligence in their installation of the plug (water
system).

Issue ● Did the company use proper care to prevent the accident? YES

Reason ● D cannot be held liable as there was no way they could have anticipated the
risk
● D not negligent; an accident; D took reasonable precautions, but extreme
severity of frost of 1855

Ratio ● Negligence is the omission to do something that a reasonable person, guided

upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable
person would not do

Defines Who is a Reasonable Person

ARLAND AND ARLAND V TAYLOR 1955 ONT CA
● “I simply say he is a mythical creature of the law whose conduct is the standard by which
the Courts measure the conduct of all other persons and find it to be proper or improper
in particular circumstances as they may exist from time to time. He is not an
extraordinary or unusual creature; he is not superhuman; he is not required to display
the highest skill of which anyone is capable; he is not a genius who can perform

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 uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of
normal intelligence who makes prudence a guide to his conduct. He does nothing that a
prudent man would not do and does not omit to do anything a prudent man would do.
He acts in accord with general and approved practice. His conduct is guided by
considerations which ordinarily regulate the conduct of human affairs. His conduct is
the standard "adopted in the community by persons of ordinary intelligence and
prudence."

Negligence (Found) - Statutory Standards > Unreasonable Customs - Defendant Argued Custom to
Not Salt Parking Area; However, Court Found Breach of Occupiers Liability Act
WALDICK V MALCOLM 1991 SCC
Facts ● W fell on the icy area of Ms rented farmhouse
● Parking area was not salted or sanded
● Issue was whether the defendant breached the standard of care under the
Occupiers Liability Act
● Defendant argued that there was a custom in the area to not put salt or sand
the icy parking areas – were they successful?

Issue ● Did the defendant beach the standard of care under the Occupiers Liability
Act? YES

Decision ● D was negligent in not maintaining the parking lot in proper condition

Reason ● Custom can be relied on by both the P or the D to support their argument
about standard of care — it is only worthy of judicial protection as long as it
is shown not to be negligent, can’t just be a habit of the group
● The existence of customary practices which are unreasonable in
themselves, or which are not otherwise acceptable to courts, in no way
ousts the duty of care owed by the occupiers under the Act. Such a duty is
to take care as is reasonable in the circumstances – which here would have
been salting/sanding the parking lot

Ratio ● Custom is strongly suggestive of the expected standard of care, but not
necessarily determinative, and it does not replace or override what a
reasonable, prudent, ordinary person would do in the circumstances.
● Unreasonable customs cannot be made reasonable and constitute a valid
defence
● General community compliance isn’t enough to negate liability as being
reasonable in all circumstances

Breach Statutory Provisions Does Not Give Rise to Tortious Action/Equal Negligence
CANADA V SASKATCHEWAN WHEAT POOL 1983 SCC
Facts ● Canada Wheat Board seeks damages from Saskatchewan Wheat Pool for the
delivery of infested grains contrary to the Canada Grain Act

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 ● Court considers whether statutory breach should form its own basis for an
action in tort or if it is more appropriately part of the law of negligence

Issue ● Can Canada Wheat Board successfully hold Saskatchewan Wheat Pool liable
in tort and recover damages because SWP breached its Statutory Duty to
deliver wheat/grain that is suitable for consumption? NO

Decision ● The Court rejected the tort of breach of statutory duty. Statutory breach
found but no negligence found

Reason ● Here, the case was advanced as one of statutory breach alone – Court
rejected idea of a statutory breach as a cause of action justified merely on
proof of breach and damages but still considered whether negligence was
met. Negligence was not met despite the statutory breach, b/c it wasn’t
detailed enough to determine fault under negligence
● The way in which the infestation was detected was not found to be a result
of negligence
- SWP carried out the procedures set out under the Act
- The loss was not the result of the SWP’s negligence

Ratio ● Breach of statutory duty does not give rise to tortious action/equal
negligence
● A statutory breach is prima facia evidence of negligence - must show fault on
part of defendant
- It’s the foreseeability question. Must measure the defendant’s
conduct on the reasonable person standard

Ratio ● While a statutory breach can serve as initial evidence of negligence, proving
Explained negligence ultimately requires demonstrating fault on the part of the
defendant, considering factors such as foreseeability and adherence to the
reasonable person standard)

Railway Company Complied with Statute - However, Statute Not Good and Railway Company Still
Expected to Uphold to Standard of Reasonableness Even if Complying with Statute (Both City and
Railway Liable)
RYAN V VICTORIA (CITY) 1999 SCC
Facts ● Plaintiff was injured when he was thrown from his motorcycle while
attempting to cross railway tracks running down the centre of a street – tire
was caught in a wide flangeway gap in the tracks
● He sued the city and railway companies who owned and operated the tracks
● Railway denied liability on grounds that the tracks were authorized and
complied with all applicable statutes and regulations

Issue ● Were the Railways negligent regarding the wideness of the flangeways? YES
● Did the Railways owe the P a duty of care? Yes – it was foreseeable that

20
 carelessness with respect to the tracks could cause harm to users

Decision ● Finds the Railways and City jointly and severally liable in negligence – city for
maintaining the dangerously wide flangeways and the Railways for failing to
warn of the hazard

Reason ● To avoid liability, a person must exercise the standard of care that would be
expected of an ordinary, reasonable and prudent person in the same
circumstances

Ratio ● The fact that a statute prescribes or prohibits certain activities may be
evidence of reasonable conduct but it does not extinguish the underlying
obligation of reasonableness
● An industry standard can help us understand what is reasonable but is NOT
determinative.
● Mere compliance with a statute does not alone preclude a finding of liability
– but may render an act reasonable which may otherwise appear to be
negligent
● A party acting under statutory authority must still take such precautions that
are reasonable within the range of that authority to minimize the risks that
may result from its actions

Exceptions to the Reasonable Person Standard

● When young people engage in adult activity, they are held to the objective standard as if
they were adults
● Ie. playing with toys would not attract an adult standard of care, driving an automobile
would attract adult standard of care
● Parents are held liable for damages caused by their children unless they can show that the
activity that caused the harm was not intentional or that the parent was exercising
reasonable supervision over the child at the time and made reasonable attempts to prevent
or discourage the child from engaging in such activity (Parental Responsibility Act)

Exception to Reasonable Person Test Applied to Children - Children Version of TEST

HEISLER V MOKE 1972 ONT
Facts ● 9 yr old boy was warned against jumping and injuring (broke) his leg, did
jump and hurt himself, and then later re-injured his leg on the clutch on a
tractor

Issue ● Was the child contributorily negligent for the injury? NO

Reason Test:
1) Does the child have the capacity/is capable to be found negligent? YES

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 ●
Here the case says the child is 9 and a bright child for his age, clever –
so is capable of understanding of his duty to take care
● In the case at bar I have found the plaintiff child to be fully capable of
being found negligent. He is a bright, alert child and was nine years
of age at the time of the accident. His recollection of events which
occurred over three years ago was very good and he gave his
evidence most clearly -- much better as a matter of fact than many
adults would.
2) Whether the child was negligent and, if so, to what degree? NO
● One must ask oneself what a reasonable child of that particular age
could reasonably be expected to do and to foresee under those
particular circumstances.
● The second injury occurred while he was pressing down with his leg
on the clutch of a tractor while holding on to the steering wheel to
brace himself. Although an adult might be expected to realize that
this was a dangerous act having regard the recent injury to the leg
and that such action might exert as much force, if not more force, on
the leg than jumping on it, it certainly cannot find applying either
the objective test of a reasonable child of nine or the more
subjective test of that particular child considering his intelligence
and experience and what he had been told, that the plaintiff could
possibly be guilty of negligence, for he could not be expected to
realize or foresee the consequences of his act.

Ratio TEST:
1) Does the child have the capacity/is capable to be found negligent? Whether
the child, having regard to age, intelligence, experience, general knowledge,
and alertness, is capable of being found negligent at law in the circumstances
under investigation; and
● Whether the child, having regard to his age, his intelligence, his
experience, his general knowledge and his alertness is capable of
being found negligent at law in the circumstances under
investigation/acted reasonably under the circumstances?
2) Whether the child was negligent and, if so, to what degree? Whether the
child has exercised the care to be expected from a child of like age,
intelligence and experience.
● The test to be applied is the test of the reasonable person - one must
ask oneself what a reasonable child of that particular age could
reasonably be expected to do and to foresee under those particular
circumstances?

Exception to Reasonable Person Test Applied to Mentally Ill - Mentally Ill Version of TEST -
Defendant Found Not Liable
FIALA V CECHMANEK

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Facts ● MacDonald (D) experiences his first manic episode of (undiagnosed) bipolar
disorder when he went for a run.
● He strangles Cechmanek (D2), who is driving. D2 crashes her car into that
driven by Fiala (P).
● P and her daughter sustained injuries. D continued banging on D2’s car after
the collision.

Issue ● Can a defendant, who suffers from a psychiatric illness, be seen to be

responsible for his own actions, and thus to have a standard of care? NO
● Was the defendant liable for plaintiff’s injuries? NO
● Was the standard of care adjusted in this case? YES
● Whether the individual is capable of having breached the standard of care?
NO

Decision ● The defendant did not have the capacity, therefore he could not be found to
be at fault for his actions.

Reason ● The expert evidence preferred by the trial judge clearly indicated that D was
afflicted suddenly, and without prior warning, with a condition that left him
with no meaningful control of his behaviour and an inability to appreciate
the duty of care he owed to D2 and others, including the Ps (meets Test 1).
● His mental illness was manifestly incapacitating.
● D was unaware of his mental illness until after the accident.
● He was not driving a vehicle at the time and there was no way he could have
foreseen the onset of his manic episode or taken preventative measures to
avoid its result (meets Test 2).
● His fault was no greater than D2’s or the P’s; there was no fault.

Ratio TEST:
● In order to be relieved of tort liability when a defendant is “afflicted suddenly
and without warning with a mental illness” (i.e. when the psychiatric illness
was previously undiagnosed), that defendant must show either of the
following on a balance of probabilities:
1) As a result of his or her mental illness, the defendant had no capacity
to understand or appreciate the duty of care owed at the relevant
time; or
2) As a result of illness, the defendant was unable to discharge his duty
of care as he had no meaningful control over his actions at the time
the relevant conduct fell below the standard of care.
● If the defendant satisfies one of the tests above, one can conclude that there
is no standard of care to be met, and the defendant is thus relieved of tort
liability.

Negligence – Professional Standard of Care

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 Standard of Care/Reasonable Person Test for Physicians - Physician Found Not Liable
CHALLAND V BELL 1959 ALBERTA
Facts ● P (Challand) fell while working in his cattle barn on his farm, broke his left
arm and sustained multiple related wounds
● P was taken to the D, a general practitioner, for medical treatment
● D examined the wound and opined that it was clean
● Took a number of steps to care for the wound
● Later, he noticed some swelling of the arm which he concluded was not
excessive
● The next day. D checked Ps arm and found that swelling was excessive and
colour was not good, so he loosened the cast
● Later that afternoon, swelling was not improved so he made a further cut to
the cast
● The following day, the D concluded that the circulation was alarming and
sought the services of a specialist
● P was transferred to the hospital that day and the specialist opined it was
necessary to amputate the Ps arm and did so
- The specialist amputated the arm after finding bacteria present that
is commonly found in soil contaminated by farm animals
● P sued D for negligence on grounds that D failed to properly clean the
wound before casting it and failed to watch the circulation when he knew
or ought to have known that circulation was impaired

Issue ● What is the standard of care required of a general practitioner?

● Court has to figure out what standard of care the GP be held to

Decision ● D not liable

● Here, the Ds treatment was said to not differ from that which a specialist
would have given

Ratio ● A surgeon is expected to apply the degree of care which a normally skilled
member of their profession may reasonably be expected to exercise (even a
beginner - looks at the average of specific group)
● It is expected that a professional should show a fair, reasonable and
competent degree of skill, it is not required that they should use the highest
degree of skill..nor will they be held to have guaranteed a cure
TEST:
1) The surgeon must undertake that he possesses the skills, knowledge and
judgement of the average
2) In judging that average, regard must be had to the special group to which he
belongs
3) If the decision was the result of exercising that average standard, there is no
liability for error in judgement

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Duty to Disclose All Material Risks/Serious Consequences, Even if Mere Possibility - Doctor Found
Liable - Counter Argument that Not All Mere Possibilities Have to be Disclosed, Only Ones with
Serious Consequences
REIBL V HUGHES 1980 SCC
Facts ● P undergoes serious surgery with neurosurgeon D
● P suffers massive stroke during or immediately after surgery which rendered
him paralyzed
● P consented to the operation but alleged it was not informed consent
● P sued the D for damages

Issue ● Can the defendant doctor be held liable for not disclosing this information?
YES

Reason ● D failed to disclose that the operation would not cure the headaches and
failed to sufficiently disclose that there was a 10% chance of dying associated
with the procedure
- P would not have undergone the surgery knowing the risks and that
it would not relieve his headaches - better off without it
● Court finds that P was told no more or understood no more than that he
would be better off to have the operation than not to have it
● Not a sufficient disclosure of risks despite the Ds own testimony that 10% of
patients had passed away as a result of the same procedure
● Evidence that was made clear in testimony regarding the consequences was
not made to the P – D specifically failed to disclose that procedure would not
relieve Ps headaches

Ratio ● The relationship between surgeon and patient gives rise to a duty of the
surgeon to make disclosure to the patient of all material risks
● Physician should answer questions posed by patient as to the risks involved
and should, without being questioned, disclose to them the nature of the
proposed operation, its gravity, any material risks and any special or unusual
risks
● Even if a risk is a mere possibility, where such risk poses serious
consequences, it should be regarded as a material risk and disclosed

Counter ● Not every mere possibility need to be disclosed, only serious consequence
that could happen due to a mere possibility

Standard of Care/Reasonable Person TEST for Lawyers

BRENNER V GREGORY 1973 ONT
Facts ● P agreed to buy four town lots after several inspections thereof
● Defendant lawyer was retained to search title and close the transaction
● Later turned out that a building on the lands encroached on the street
● Seller warned the P of this danger before closing but only a survey would

25
 reveal it and none was done
● P sued lawyer

Issue ● Was the lawyer negligent in non-disclosure/can they be held liable for
negligence? NO

Reason ● There was no discussion between any buyer and the defendant about the
need for a survey
● Buyers knew about the building and the question in relation to
encroachment
● The fact that they never raised this with the lawyer suggested that they
were prepared to deal with it on their own – buyers knew they could have
all the land on which the buildings encroached
● In an action against a lawyer it is not enough to say that he has made an
error of judgement or shown ignorance of some particular part of the law,
they will be liable if that error or judgement was such that an ordinarily
competent solicitor would not have made or shown it
● Expert evidence from similar real estate lawyer said a survey wouldn’t be
normal to order in that situation

Ratio ● In an action against the solicitor for negligence it’s not enough to say that
he’s made and error of judgement or shown ignorance of some particular
part of the law, but he will be liable for damages if his error or ignorance was
such that an ordinarily competent solicitor would not have made or shown it
- Must be shown that the error or ignorance was such that an ordinary
competent solicitor would not have made or shown it

Causation

Proof of Causation
● Conduct must cause the damage – the damage must not have occurred “but for” the
conduct
● If the defendant’s conduct has nothing to do with the loss, there can be no liability

Limitation Periods
● Two years from the date of loss for most tort claims (in Ontario)
● Statutes may alter limitation periods in certain actions
● Discoverability test (clock starts to run on the day damages are discovered)
- Time does not run when someone is a minor or mentally/physically incapable of
commencing proceedings

Causation (Not Found) - “But For” TEST - Onus on Plaintiff to Prove “But For” Test - Youths Made
Plaintiff Fall on Plaintiff Argued TTC Handrails/Lack of Attendant Caused Accident
KAUFFMAN V TTC 1959 ONCA

26
Facts ● Kauffman (P) fell backwards on a subway escalator when two kids were
‘scuffling’ in front of the man in front of her, and domino effect caused him
to fall back into her.
● P argued that the TTC should have had a better handrail and attendant to
prevent the accident from happening
● The P sued the entity that would likely be able to pay. If she sued the two
youths that fell on her, she most likely would not have been able to collect

Issue ● Causation issues raised in the case – but for – would a better handrail have
prevented the accident? Would the presence of an attendant have avoided
the accident? NO

Reason ● Neither the handrail nor the attendant would have prevented what occurred
– was an accident, and therefore was not caused by the negligence of the
TTC (in not installing handrails/attendants) The type of handrail used was not
a contributing cause of the accident

Ratio ● The evidence must show the causal relationship between the alleged
negligence and the injury
- P must prove on a balance of probabilities that their injuries would
not have occurred “but for” the defendant’s actions.

Defines Crumbling Skull Rule - However, Thin Skull Rule Applied

ATHEY V LEONATI 1996 SCC
Facts ● P suffered back injuries in 2 successive collisions and later further
experienced a disc herniation in a stretching exercise
● The herniation was caused by the injuries sustained in the collisions and a
pre-disposition

Issue ● Whether the loss should be apportioned between the tortious and non-
tortious causes, where both were necessary to create the injury? NO,
defendant fully liable

Reason ● Causation is established where the P proves on BOP that the D caused or
contributed to the injury
● P must show that injury would not have occurred but for the negligence of
the D
- No evidence that had the accident not occurred P would have had
future risk of herniation based on pre-existing condition
- Preexisting condition played no part in "causing" the overall injury.
- The preexisting condition would not have caused the herniation but
for the respondents' actions

Ratio ● Thin skull rule – D must take its victim as they find them
- Ds conduct does not need to be sole cause of the injury: where D is

27
 part of the cause, the D is responsible for entire injury if where some
elements are from other causes
● Crumbling skull rule – D is not responsible for any debilitating effects caused
by a pre-existing condition that P would have experienced anyway – based
on the idea that D must place P back into original position – not better or
worse
- D is liable for additional damage exacerbated by any pre-existing
condition but not liable for the pre-existing damage
- If you can show that some pre-existing condition would have
contributed to a symptom in any event, regardless of the accident,
you may be able to justify a reduction in the award

Burden of Proving Causation Always on Plaintiff, Even in Medical Sense

SNELL V FARRELL 1990 SCC
Facts ● P became blind in one eye following a cataract operation performed by D
doctor
● Doctors decision to continue with surgery despite noticing bleeding in the
eye was a possible cause of the blindness, among other possible causes

Issue ● Issue arose as to the role of the P and D in establishing causation – should
the burden shift to the D to disprove cause in medical malpractice cases since
the D is in better position to show cause of injury than the P? NO, plaintiff
still has the burden to show causation

Ratio ● Plaintiff always has burden of causation as part of the elements of tort, even
if D may be better placed.
● Where the D does not adduce evidence to the contrary, an inference of
causation may be drawn, but position or scientific proof need not be
adduced

Example where but for test isn’t workable

Defines Material Contribution of Risk (Not Found in this Case)

CLEMENTS V CLEMENTS 2012 SCC
Facts ● P was riding motorcycle with 100 lbs overload
● Nail punctured rear tire
● When P accelerated to 120km/hr to pass a car, the nail fell out and tire
deflated
● Bike crashed and wife who was also a passenger sustained severe TBI
● Wife sued P for driving an overloaded bike too fast
● Wife could not prove the but for test at trial due limitations of the scientific
evidence
● COA found material contribution of risk to not apply, but case is important as

28
 court speaks about material contribution of risk

Issue ● Whether the usual “but for” test for causation in a negligence action applies,
as the Court of Appeal held, or whether a material contribution approach
suffices, as the trial judge held?

Decision ● Material contribution didn’t work here because there was only one
defendant. Material contribution doesn’t work unless there are more than
one D.

Ratio ● Material contribution to the risk of injury occurs where it is impossible to

determine which of a number of negligent acts by multiple actors in fact
caused the injury but it is established that one or more of them did in fact
cause it.
● A plaintiff may succeed by showing that the defendant’s conduct materially
contributed to risk of the plaintiff’s injury, where
1) The plaintiff has established that her loss would not have occurred
“but for” the negligence of two or more tortfeasors, each possibly in
fact responsible for the loss; and
2) The plaintiff, through no fault of her own, is unable to show that any
one of the possible tortfeasors in fact was the necessary or “but for”
cause of her injury, because each can point to one another as the
possible “but for” cause of the injury, defeating a finding of causation
on a balance of probabilities against anyone.”

Material Contribution of Risk (Applied) - 2 Hunters Shoot Gun, Unknown Who Hit Plaintiff - MCoR
Limited to Cases Where Unjust for Plaintiff to Not be able to Recover
COOK V LEWIS 1951 SCC
Facts ● Two negligent defendants but only one cause of injury – jury could not point
to the defendant that caused the harm although both were negligent
● Two hunters (D’s) shoot their gun in the same direction and a bullet hits the
P - Pcould not determine whose bullet struck them

Issue ● Who should be held liable when there are two negligent defendants but only
one was the cause of the accident and it is unable to be determined who
caused it? BOTH

Ratio ● Where multiple defendants are found to be negligent in bringing about the
plaintiff’s injuries, but the individual who caused the injuries is unidentifiable,
then all the defendants will be held equally liable. The burden of proof will
shift to the defendants to determine which is the guilty party

Note ● This situation is limited to cases where the courts would find it to be unjust
for the plaintiff to not be able to recover

29
 Duty of Care

● Courts use this concept as a limiting tool to restrict or deny liability even where negligent
conduct causes loss
● This will apply where the loss that is suffered is not one that the law seems worthy of
protection, where the activity is not one that tort law deems appropriate to regulate or
where the person hurt is not one thought to be entitled to protection through the law
● The duty of care is settled in most types of claims but sometimes the Court is tasked with
determining whether a duty of care applies – usually in novel cases
● The duty of care depends on the degree of proximity in the relationship between the
plaintiff and the defendant

Duty of Care (Applied) - No Duty Unless Close and Direct Relationship

DONOGHUE V STEVENSON 1932 UK
Facts ● D manufactures ginger beer sold to different stores including a café
● P (Ms. Donoghue) goes to café – friend bought her a ginger beer
● Ginger beer had a dead snail at the bottom which contaminated the drink
and P became ill
● P attempting to sue producer of ginger beer for negligence, for failure to
ensure that the bottle was properly inspected

Issue ● Whether a duty is owed by the defendant to the purchaser to take care? YES
● Whether a manufacturer of a consumer goof owes a duty of care to its
consumers? YES

Reason ● You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
Who, then, in law is my neighbour ?
● The answer seems to be—persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which are
called in question.”

Ratio ● DIRECT AND CLOSE - there has to be a relationship of that nature to justify
imposing this duty, even if you are super negligent, you don’t have a duty
unless it’s direct and close.
- Limits who can recover from negligent conduct
● Negligence is on a case by case basis

Duty of Care TEST (Do Not Use This Test) - Refer to Hobart Modifications of This Test
ANNS V MERTON LONDON BOROUGH COUNCIL 1978 UK
Ratio TEST:
Court creates a two-step approach to analyzing whether a duty of care exists in novel

30
 claims:
1) Is there a sufficiently close relationship between the parties so that in the
reasonable contemplation of the defendant, carelessness on its part might
cause damage to that person? If yes,
● If foreseeability and proximity are established at the first stage, a
prima facie duty of care arises
2) Are there any considerations wich ought to negate or limit a) the scope of
the duty and b) the class of persons to whom it owed or c) the damages to
which a breach of it may give rise?

Established the Cooper/Anns TEST for Determining Duty of Care in Novel Cases - Duty of Care (Not
Found) - No Proximity and Policy Considerations/Conflicts
COOPER V HOBART 2001 SCC
Facts ● Registrar of Mortgage Brokers suspended a broker’s licence and froze its
assets because the broker used investor funds for unauthorized purposes
● Appellant, one of 3000 investors who advanced money to the broker, sued
the Registrar alleging breach of duty of care owed to investors by acting
earlier to suspend the licence of the broker and notify investors of same
● Appellant alleged that if the Registrar acted sooner, investor losses would
have been prevented or diminished

Issue ● Does the Registrar owe a duty of care to the investors giving rise to liability in
negligence for economic losses that investors sustained? NO

Reason ● Registrar has not duty to investors.

Step 1 (Not met)
● There was nothing that indicated these proximity factors were met –
Registrar owed a broad duty to the public as a whole, NOT specifically to the
investors There is no proximity between the registrar and the investors.
Step 2 (not met)
● Fails due to policy considerations. A duty to investors might conflict with that
overarching duty to the public - must balance out public and private interests
(failing part 2 of the test)
…
● Although investors may show that it was reasonably foreseeable that failing
to issue warnings might result in financial loss to the plaintiffs, must also
show proximity – that the Registrar was in a close and direct relationship to
the plaintiffs making it just to impose a duty of care upon him towards the
plaintiffs
● The statute being the only source of the Registrars duties must give rise to
the factors showing proximity
● In other words, duty must come from statute – apart from this they are no
different from the ordinary person on the street

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Ratio TEST:
1) Do the circumstances disclose reasonably foreseeable harm and proximity
sufficient to establish a prima facie duty of care?
● The proximity analysis at the first stage focuses on factors arising
from the relationship between the plaintiff and the defendant - these
factors include questions of policy
● Close and direct relationship, such that defendant might be under an
obligation to be mindful of the plaintiffs interests
● Defining the relationship may involve looking at expectations,
representations, reliance and the property or other interests
involved
● Evaluate the closeness of the relationship and determine whether it
is just and fair to impose a duty of care in that relationship
● If foreseeability and proximity are established at the first stage, a
prima facie duty of care arises
2) Do any residual policy considerations justify denying liability? (Are there any
reasons why the duty should not be imposed)
● Concerned with the effect of recognizing a duty of care
● Looking at whether there are broader considerations that would
make imposition of a new duty of care unwise

New Tort of Negligence Created - TEST Duty of Care on Investigating Officer to Suspect - However,
Found Police Was Not Negligent in Investigation
HILL V HAMILTON-WENTWORTH REGIONAL POLICE SERVICES BOARD 2007 SCC
Facts ● Hill is an Indigenous man arrested for robberies in 1995, which the police had
some evidence (photo lineup, surveillance, eyewitness accounts) saying it
was likely him.
● However other robberies continued after he was in custody, and there was
other evidence saying it was Hispanic men (one of whom looked like Hill).
● He was tried for one count and convicted, then appealed and was acquitted.
Sued for negligence in the police investigation.

Issue ● Whether a new tort of negligence was created? YES

Decision ● Found that there wasn’t negligence but there was a new tort of negligent
investigation
● Duty of care on an investigating police officer to a suspect in the course of an
investigation

Reason ● Negligent police investigation is recognized as a novel duty of care, but Hill
cannot recover in tort because the police investigated like a reasonable
officer would in the circumstances
● Court says that police conduct was reasonable for the circumstances (would
be different today but this was 1995), standard of care was met

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Ratio ● New tort of negligent investigation: duty of care on an investigating police
officer to a suspect in the course of an investigation
● Negligent police investigation is recognized as a novel duty of care, but Hill
cannot recover in tort because the police investigated like a reasonable
officer would in the circumstances
● Court says that police conduct was reasonable for the circumstances (would
be different today but this was 1995), standard of care was met

Duty of Care (Not Found) - TEST Modified for Claims of Negligent Misrepresentation (Special
Relationship Involves Defendant Reasonably Foreseeing Plaintiff Will Rely on Representations Made
and Reasonable for Plaintiff to Rely on Defendant’s Representations)
R V IMPERIAL TOBACCO CANADA LTD 2011 SCC
Facts ● The first case dealt with the BC Government seeking to recover the cost of
medical treatment of individuals suffering from tobacco-related illnesses
from tobacco companies, including Imperial.
- BC alleged that they failed to properly warn the public about risks
associated with smoking
● In the second case, a class action was brought against Imperial on behalf of
members who purchased “light” or “mild” cigarettes, seeking a refund of the
cost of the cigarettes
- They alleged that the levels of tar and nicotine listed on Imperial’s
packages for light and mild cigarettes did not reflect the actual toxic
emissions to smokers, as the smoke was just as harmful as regular
cigarettes
● Tobacco companies issued third-party notices against the federal
government alleging that Canada negligently misrepresented statements
made to the industry and public about the health attributes of light and mild
cigarettes

Issue ● Does Canada owe a duty of care to consumers (NO) and the tobacco industry
(YES)?

Decision ● Canada did not owe a duty of care to consumers but owed a duty of care to
the tobacco industry - however, negated by policy considerations

Reason Canada did not owe a duty of care to consumers

● The relationship was limited to Canada’s statements to the general public
that the light cigarettes are less hazardous
● No specific interactions between Canada and consumers
● No duty can be found in the relevant statutes. Only general duties to the
public
● History of interactions reveal that Canada had regulatory powers over the
manufacturers, acted as adviser to manufacturers and had commercial
relationships with the companies based on more specific advice given to the

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 companies by government officials – more than mere public statements
● This might support a conclusion that Canada ought reasonably to have
foreseen that the companies would rely on their representations and that
this reliance would be reasonable
Policy concerns negate the duty to the industry
● The representations were protected expressions of government policy
● Core government policy decisions are protected from tort liability as long as
they are rational and in good faith

Ratio Court applies Cooper/Anns test

● Foreseeability must be grounded in a relationship of sufficient closeness or
proximity to make it just and reasonable to impose an obligation on one
party to take reasonable care not to injure the other
● In a claim for negligent misrepresentation, both of these requirements for a
PF duty of care are established if there was a special relationship between
the parties – meaning that
1) The defendant ought reasonably to foresee that P will rely on their
representation and
2) Reliance by the P would be reasonable in the circumstances
● The court is saying that in cases of negligent misrepresentation there is
something different when it comes to duty that we aren’t considering
- THE SPECIAL RELATIONSHIP – we didn’t see this in Cooper

“Unforeseeable Plaintiff” - Duty of Care Can Only Exist for Actions Whose Consequences are
Reasonably Foreseeable - Defendant Dropped Bag on Railroad, Fireworks Exploded Causing Scale to
Hit Plaintiff Standing Far Away (Negligence is Relational)
PALSGRAF V LONG ISLAND RAILROAD CO
Facts ● P was standing on platform of the D railroad after buying a ticket to a beach
● Train stopped at the station heading elsewhere and two men ran to catch it –
train started moving before one of the men could reach the platform, so he
jumped on the moving train carrying a package
● Two guards tried helping him onto the train and he lost the package which
fell on the rails
● Package was small and contained fireworks which exploded and caused
scales to be thrown several feet away and struck the plaintiff

Issue ● Why did the Court find no liability on the Defendant?

Reason Negligence being relational:

● Someone’s negligence needs to be relational. Meaning that the defendant’s
negligent conduct may harm one person, but it doesn’t mean that the
defendants conduct will be liable to a third party that was harmed by their
actions.
● The conduct of the defendant’s guard, if a wrong in its relation to the holder

34
 of the package, was not a wrong in its relation to the plaintiff standing far
away. Relatively to her it was not negligence at all”.
- No reasonable foreseeability that the plaintiff would be harmed

Ratio ● When the harm is not willful, the plaintiff must prove that the act had
possibilities of danger so apparent as to entitled them to be protected
against the act
● A duty of care can only exist for those actions whose consequences are
reasonably foreseeable
● Negligence is relational - negligence isn’t just a concept in the abstract.
A person’s negligence doesn’t mean that everyone is a potential plaintiff –
the duty question looks at the relationship and what it means for the person
harmed and who harmed them

“Unforeseeable Plaintiff” - Negligence/Duty of Care Must be Considered in Relation to the Individual

Affected (Negligence is Relational - Foreseeability and Proximity) - Plaintiff Has Nervous Shock from
Sound of Collision
HAY V YOUNG 1943 UK
Facts ● P has serious reaction to the sound of a collision and later viewing the scene
● Claims shock and other losses as a result

Issue ● The question is always whether the Defendant was negligent with respect to
the plaintiff/liable for plaintiffs nervous shock? NO

Reason ● D was not liable for any psychiatric harm that C might have suffered as a
result of the accident. It was not foreseeable that C would suffer psychiatric
harm as a result of D negligently causing a loud traffic accident, nor was C
sufficiently proximate to the scene of the crash itself. D, therefore, could owe
no duty of care to C

Ratio ● Negligence is a concrete, not an abstract idea. It must be fitted to the facts of
each case. It is relative to the individual affected
● Negligence must be considered in relation to the plaintiff. It is always
relevant to the individual affected, the duty is not to the world at large.

Remoteness

● Another method the courts use to limit liability is the concept of remoteness
● Two main lines of cases that deal with remoteness:
1) Intervening causes – Defendant causes situation A, which causes B, which causes C
and so on. At what point is the original chain of causation broken by an intervening
causes which serves as the originating cause for harm to the plaintiff

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 2) Proportionality – was the loss disproportionate to the fault – was the harm a
foreseeable consequence of the act

Liability (Not Found) - Harm Must be Foreseeable Consequence of the Act - Oil Spills in Water,
Causes Fire, Fire Damages Plaintiff’s Wharf
WAGON MOUND (NO. 1) 1961 AUSTRALIA
Facts ● Plaintiffs carried on business of ship-building and repairing
● They owned and used a wharf which contained tools and equipment
● Ships were being refitted by plaintiff employees
● At the same time, the defendants chartered a vessel at a wharf about 600
feet away from the plaintiffs wharf – the ship was discharging gasoline and
taking in oil
● Through carelessness of the defendant servants, oil was spilled into the bay
and spread to the shore near the plaintiffs property
● Defendants made no attempt to stop the oil and set sail shortly after
● When plaintiffs manager became aware of the situation, he inquired of the
manager at the wharf which occupied the defendants ship as to whether
they could safely continue operations
● They maintained operations and manager directed all safely precautions be
taken – but eventually a fire took and spread burning the wharf and its
equipment

Issue ● Were the defendants liable for the damage to the plaintiffs wharf? NO
● Would a reasonable person in the D’s position, have foreseen the damage?
NO

Reason ● Reasonable people in the position of the Wagon Mound would regard the
oil as very difficult to ignite in the water
● Their personal experience would probably be that this rarely has happened
● The chances of such exceptional circumstances to occur while the oil was
still in water could have been seen as too remote
● The damages to the P as a result of the spillage was not reasonably
foreseeable by those for whose acts the defendants would be responsible

Ratio ● Liability depends on the reasonable foreseeability of the damage that in fact
happened

Liability (Found) - Foreseeability of Event/Sequence that Caused Injury Does Not Matter,
Foreseeability of Injury Matters
HUGHES V LORD ADVOCATE 1963 UK
Facts ● Eight year old boy enters manhole in a road that was opened for purposes of
accessing telephone cable by post office employees
● Boy was holding a lamp from the site and after exiting the hole, tripped over
the lamp which fell into the hole and caused an explosion reaching 30 feet –

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 caused the appellant to fall into hole and sustain severe injuries
● It was argued that the post office was responsible for failing to close the area
before leaving the site – Court found the office not responsible as the harm
was not reasonably foreseeable - P appealed

Issue ● Are the defendants liable? YES

Reason ● The cause of this accident was a known source of danger, the lamp, although
it behaved in an unpredictable way
● The known source of danger is what is foreseeable, the fact that it happened
in a way that could not have been foreseen, did not matter
● Just because the manner of the accident was not foreseeable does not mean
that the accident itself was not foreseeable
● The office had a duty to safeguard the appellant against the type of accident
that happened – defendants not absolved from liability because they could
not predict the precise unfolding of events leading to the accident
● A reasonable person would have recognized how dangerous a paraffin lamp
is and not left them unattended; so they are the technology of the time, but
that doesn’t mean that they met their standard of care
● “The fact that the features or developments of an accident may not
reasonably have been foreseen does not mean that the accident itself was
not foreseeable”

Ratio ● Foreseeability of the actual event that caused the injury does not matter; it
is just the foreseeability of injury
● It is not the manner of harm or manner of incident that has to be
reasonably foreseeable, it is the actual incident itself
- Just because the manner of the accident was not foreseeable does
not mean that the accident itself was not foreseeable
● Not the sequence that matters, but the type of injury (it’s foreseeable that
someone could be burned by open, unattended flame – that the burn injuries
were foreseeable, even though the sequence was not)

Liability (Found) - Harm/Real Risk Must be Foreseeable - Reasonable Person in Place of Chief
Engineer Would Have Known Their Was Real Risk of Oil Catching Fire
WAGON MOUND (NO. 2) 1967 AUSTRALIA
Facts ● Owners of ships lying at the damaged wharf which was the subject of Wagon
Mound No 1 appeal the decision of the trial judge that the damage from the
fire was not reasonably foreseeable
● In Wagon Mound 1, the Court was not concerned with the degrees of
foreseeability because the finding was that the fire was not foreseeable at all
● In this case, findings show that some risk of fire would have been present to
the mind of the RP in the shoes of the ships chief engineer
● So the Court looked at what is the precise meaning of foreseeable and

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 reasonably foreseeable

Issue ● Whether a reasonable person having the knowledge and experience

expected of the chief engineer of the Wagon Mound would have known that
there was a real risk of the oil in the water catching fire in some way? YES

Decision ● It was reasonably foreseeable and thus the defendant is liable for not taking
the steps to discharge the oil from the water

Reason ● The damage is too remote if it is something that a reasonable person would
brush aside as an unforeseeable consequence
● It is justifiable not to take steps to eliminate a real risk if it is small and if the
circumstances are such that a reasonable person, careful of the safety of
their neighbour, would think it right to neglect it
● However, a properly qualified and alert chief engineer would have realized
there was a real risk
● If a real risk is one which would occur to the mind of a RP in the position of
the engineer and one which he would not brush aside as far-fetched, and if
the criterion is to be what the RP would have done in the circumstances,
then surely he would not neglect such a risk if action to eliminate it present
no difficulty, involved no disadvantage and required no expense
● The discharge of the oil would have taken considerable time and a vigilant
ships engineer would have noticed it at an early stage
● He ought to known it is possible to ignite this oil in water and he ought to
have known that this has happened before. The most that can be said to
justify inaction is that he would have known that this could only happen in
very exceptional circumstances; but that does not mean that a RP would
dismiss such risk and do nothing when it was so easy to prevent it

Ratio ● If a real risk is one which would occur to the mind of a reasonable person in
the position of the D, and which the reasonable person would not brush
aside as far-fetched, and if the criterion is to be what the reasonable person
would have done in the circumstances, then surely he would not neglect
such a risk, if action to eliminate it presented no difficulty, involved no
disadvantage and presented no risk

Thin Skull Rule - TEST is Whether Defendant Could Reasonably Forseen Type of Injury Plaintiff
Suffered, Not That Initial Injury Caused Further Injuries
SMITH V LEECH BRAIN & CO 1962 UK
Facts ● The defendants negligence resulted in a piece of molten metal striking and
burning the lip of the plaintiffs husband
● The place of the burn began to ulcerate and cancer was diagnosed
● After extensive treatment, the husband passed away
● The burn was the cause of the cancer and death

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 Issue ● Whether the defendant is liable? YES

Reason ● The test is not whether the defendant could reasonably have foreseen that a
burn would cause cancer and that he would die
● The test is whether the defendant could have reasonably foreseen the type
of injury he suffered, namely the burn
● What in the particular case is the among of loss or damage suffered as a
result of the burn depends on the constitution of the victim
● Defendant must take their victim as they find them

Ratio ● Thin Skull Rule: must take the victim as they find them
● The test is whether the defendant could have reasonably foreseen the type
of injury he suffered, namely the burn not not whether the defendant could
reasonably have foreseen that a burn would cause cancer and that he would
die

Remoteness (Applied) - Harm Too Unrelated to Wrongful Conduct to Hold Defendant Liable - Plaintiff
Must Show that Person of Ordinary Fortitude Would Suffer Similar Injuries
MUSTAPHA V CULLIGAN OF CANADA LTD 2008 SCC
Facts ● Appellant was replacing an empty bottle of drinking water with a full one
when he saw a dead fly and part of another dead fly in the unopened
replacement bottle
● He claimed major depressive disorder, phobia and anxiety and was awarded
at trial $80,000 in general damages, $24,174 in special damages and
$237,600 for loss of business
● CA found injury not reasonably foreseeable and SCC dismissed appeal

Issue ● Whether the breach caused the damage or whether it was too remote to
warrant recovery? TOO REMOTE
● Would a person of ordinary fortitude suffer the same reaction that Mustapha
suffered in this case? NO

Reason ● A successful action in negligence requires that the P show:

1) Did the D owe the P a duty of care? YES
2) Did the D’s behaviour breach the standard of care? YES
3) Did the P suffer damage? YES
4) The remaining question is whether the breach caused the damage
(NO) or whether it was too remote to warrant recovery
● P failed to showed that his damage was caused by Ds conduct – it was too
remote
● If D knew that P was of less than ordinary fortitude the Ps injury may have
been reasonably foreseeable to the D – not the case here
● For P to succeed he would need to show that it was foreseeable that a
person of ordinary fortitude would suffer serious injury from seeing the flies

39
 in a bottle of water he was about to install – he failed to do so

Ratio ● The remoteness inquiry asks whether the harm is too unrelated to the
wrongful conduct to hold the D fairly liable
● The remoteness inquiry depends not only upon the degree of probability
required to meet the reasonably foreseeability requirement but also on what
a person of ordinary fortitude would suffer
● Unusual or extreme reactions to events caused by negligence are imaginable
but not reasonably foreseeable

Psychiatric Damage without Physical Injury

Mental Injury (Found) - Plaintiff Does Not Have to Adduce Evidence of Psychiatric Diagnosis/Get
Expert Evidence to Make Claim for Psychological Harm - Plaintiff Suffered Personality Changes After
5 Car Accidents and Relied on Family/Friends Testimony
SAADATI V MOORHEAD 2017 SCC
Facts ● The plaintiff was involved in 5 car accidents between 2003-2007.
● He commenced an action against the defendant claiming he had suffered
psychological injuries such as change of personality and cognitive difficulties
as a result of the collision.
● To prove his case, the plaintiff relied exclusively on the testimony of friends
and family to show that he had suffered psychological injury and called no
expert witnesses

Issue ● Whether P must provide expert evidence of a recognized psychiatric illness?

NO

Decision ● You do not need to pinpoint to a specific diagnosis/recognizable illness

Reason ● The Court reiterated that the recoverability of a mental injury depended on a
claimant satisfying the criteria applicable to an action in negligence. Those
requirements are:
- Proving that a duty of care existed;
- Proving a breach of that duty of care;
- Proving a damage; and
- Proving a legal and factual causal relationship between the breach
and the damage.
● However, there is no requirement to prove that a specific recognized
psychiatric or mental injury was sustained by the claimant. What is required
to establish mental injury is a serious and prolonged disturbance that rises
above ordinary annoyances, anxieties and fears that come with living in
civil society

Ratio ● A finding of legally compensable mental injury need NOT rest, in whole or
in part, on the claimant proving a recognized psychiatric injury through

40
 expert evidence. It remains open to the defendant, in rebutting a claim, to
call expert evidence establishing that the accident cannot have caused any
mental injury.
● Claims for mental injury can no longer be dismissed because the plaintiff has
failed to obtain evidence from a medical expert proving a recognizable
psychiatric illness.

Second Accident

Second Accident (Applied) - Original Injury Caused Second Injury - Defendant Liable for Second
Accident (Falling Down the Stairs), As Plaintiff Lost Ability to See Clearly As Result of Original Injury
WIELAND V CYRIL LORD CARPETS 1969 UK
Facts ● Plaintiff was injured in a bus accident due to the negligence of the defendant.
● After being fitted with a neck cast, she left the hospital feeling dizzy.
● The plaintiff wore bifocal glasses and had done so for ten years. The collar on
her neck deprived her of the ability to adjust herself to the use of the
bifocals. The combination of these factors produced some unsteadiness.
● She called her son to help her home, together they descended the stairs and
on reaching the last step or about the last step, the plaintiff fell, because she
did not show her habitual skill in descending the stairs when wearing bifocal
glasses.

Issue ● Did the first accident, which was caused by the defendant, cause the second
accident? YES

Reason ● I find that the fall and the resulting injury was caused by the defendant’s
negligence. I find that it was the result of the injury inflicted in that accident.
● The plaintiff’s ability to negotiate the stairs was impaired and this resulted
in a fall, which was a fall, in my view, in one of the ordinary activities of life
for which she had been rendered less capable than she previously was.
● In my view, the injury and damaged suffered because of the second fall are
attributable to the original negligence of the defendants so as to attract
compensation.

Ratio ● An injury sustained in one accident may be the cause of a second injury -
Must determine whether the originating accident led to the subsequent
accident
● When determining liability for possible consequences that might flow from
an injury, it is not necessary to show that each was within the foreseeable
extent or foreseeable scope of the original injury in the same way that the
possibility of injury must be foreseen when determining if the D is liable
- It is foreseeable that one injury may affect a persons ability to cope
with the changes or realities of life and thereby cause another
injury and if foreseeability is required this kind of foreseeability of a

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 general nature suffices

Second Accident (Not Applied) - If Injured Plaintiff Acts Unreasonably, They Cannot Hold Defendant
Liable for Second Injury Caused Own Unreasonable Conduct - Plaintiff Goes Down the Stairs with
Weak Leg (From First Accident) Unassisted, Falls and Injures Himself
MCKEW V HOLLAND ET AL 1969 UK
Facts ● P’s leg was weakened in an accident for which the D were liable. As a result,
his leg would give way beneath him occasionally.
● One day, while walking downstairs, unassisted and without using the
handrail, his leg collapsed, and he began to fall. He jumped to land in a
standing position and when he landed, he broke his ankle.

Issue ● Whether D was liable for second accident? NO

Decision ● The second accident was caused by the plaintiff doing something
unreasonable, therefore D not liable for second injury

Reason ● He knew that his leg was liable to give way suddenly and without warning
and he knew that this stair was steep and that there was no handrail.
● He must have realized that he could only safely descend the stair if he either
went extremely slow and carefully so that he could sit down if his leg gave
way, or waited for assistance but he chose to descend in such a way that
when his leg gave way he could not stop himself.

Ratio ● Liability for second incident depends on whether person is acting reasonably
or unreasonably when second injury is sustained – breaks the chain of
causation

Defences to Negligence

Contributory Negligence
● A plaintiff’s ability to recover from a defendant may be reduced as a result of the plaintiff’s
own conduct
● This defence says that the P contributed or caused their own harm
- If award = $100,000 and P is 20% responsible, then the D only pays $80,000

Contributory Negligence (Applied) - Plaintiff Must Exercise Ordinary/Reasonable Care - Defendant

Should’ve Cleared Obstruction but Plaintiff Liable for Riding Horse Violently Causing Them to Not See
Obstruction
BUTTERFIELD V FORRESTER 1809 UK
Facts ● Plaintiff was thrown down and injured while riding a horse
● Plaintiff had encountered an obstruction created by the defendant
● Plaintiff was riding violently – had he been riding with reasonable and

42
 ordinary care he could have seen the obstruction and avoided it

Issue ● Can the plaintiff recover damages from the defendant? NO

Reason ● The plaintiff proved to be riding as fast as his horse could go, and this was
through the streets of Derby. If he had used ordinary care he must have seen
the obstruction, so that the accident appeared to happen entirely from his
own fault.

Ratio ● A party is not to cast [themselves] upon an obstruction which has been made
by the fault of another, and avail themselves to it, if they do not themselves
use common and ordinary caution to be in the right
● One person being at fault does not dispense with another’s duty to take
reasonable/ordinary care for themselves

Contributory Negligence (Applied) - Last Clear Chance Rule Introduced (Even if Plaintiff Acted
Negligently, Defendant Had Opportunity to Avoid Accident)
DAVIES V MANN 1842 UK
Facts ● P had a donkey that was on a highway, which the D was also on with his
horse and wagon.
● D’s servant negligently drove the horses and wagon in a way that violently
struck the donkey and killed it.
● However, P’s donkey was tied to the side of the road (which was legal) and
therefore couldn’t get out of the way, so he was contributorily negligent

Issue ● Is the defendable liable? YES

Decision ● Just because P was negligent too, this doesn’t relieve D from liability if D
could have avoided the injury to P by exercising reasonable care

Reason ● Although the plaintiff was negligent, this negligence does not prohibit him
from having a cause of action.
● Merely placing one's donkey on the road does not give the defendant
permission to drive fast and run it over.
● The defendant had the last chance to prevent the injury, and his negligence
was more blameworthy because a non-negligent driver would not have killed
the donkey, despite the plaintiff's negligence.

Ratio ● Last clear chance rule is introduced – even if the P was acting negligently, if
the D had the opportunity to avoid the accident then the D can be held fully
liable

Negligence Act
● Section 1 – Court apportions fault where two or more persons contribute to neglect and
where two or more persons are at fault they are jointly and severally liable to the plaintiff

43
 but as between themselves, each is liable to make contribution to the other in the amount
of fault (unless otherwise stated by contract)
● Section 2 – a tortfeasor can recover from another tortfeasor who is liable in respect of
damages to another by settling with the plaintiff and then suing the other tortfeasor
● Section 3 – where Plaintiff is also at fault for damages, Court apportions damage according
to the degree of fault found against the parties (contributory negligence)

How might a plaintiff contribute to their own injuries?

● Contribute to the incident which caused the injuries
● Expose themselves of a risk of being involved in an incident
● Fail to take reasonable precautions to minimize injuries should an incident occur

1) Voluntary Assumption of Risk

Voluntary Assumption of Risk (Waivers) - Factors Considered When Assessing if Waiver Applies
APPS V GROUSE MOUNTAIN RESORTS 2020 BCCA
Facts ● Plaintiff suffered injury while snowboarding at a Park
● Plaintiff signed waiver of liability

Ratio ● Whether signing such clauses will apply depends on a number of factors
including:
- Whether the clause was part of a signed contract,
- Whether it purported to exclude liability for the defendants acts of
negligence,
- The adequacy of the clause,
- The steps taken to give the user notice of the clause, and
- When the notice was given

2) Illegality
● Illegality can bar recovery in tort (P doing something illegal that contributed or caused the
loss that they incurred)

Doctrine of Illegality (Not Applied) - Distinction Between Plaintiff Profiting from Crime vs
Compensation for Personal Injury - D Driving P’s Car Drunk, Falls Into Ditch, Injures D Case
HALL V HEBERT 1993 SCC
Facts ● P and D were both drinking one night
● They enter Ds vehicle when it stalls on a dark gravel road
● They decided to try a rolling start with P at steering wheel
● P lost control and veered into a ditch and suffered head injuries
● P sued D for allowing P to drive Ds car despite the fact that the D knew the P
was impaired
● The argument was because the plaintiff was doing something illegal that
caused his injuries, he should not be able to recover based on the ground of
illegality which says someone should not recover compensation for their

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 crimes (should not profit from their crimes)

Issue ● Whether the action against the D should be dismissed based on the doctrine
of illegality? NO

Decision ● Adjusted apportionment of damages to be 50%/50%

Reason ● The Ps behaviour is relevant in the context of contributory negligence but

otherwise is entitled to recover from the negligence of another for personal
injuries sustained as a result of that negligence – the compensation here
arises from the damage caused to him and not from the conduct (thus P is
not profiting from illegal act)
- The court said that the P is being placed back in their original
position, therefore, they are not profiting from their crime

Ratio ● Illegality will not operate in tort to deny damages for personal injury and will
not seek damages as profit for illegal acts
● Court draws a distinction between cases where a P is trying to profit from the
wrongdoing and cases where P is claiming compensation for personal injury

Doctrine of Illegality (Applied) - No Entitlement to Loss of Wages While Incarcerated

BRITISH COLUMBIA V ZASTOWNY 2008 SCC
Facts ● P, while in prison, was sexually assaulted by prison official. He became
addicted to heroin and was imprisoned again as a result
● He sued the government for vicarious liability relating to the sexual assaults
which had been committed against him by its employee, the prison official,
alleging that it caused his later drug use/personality changes/employment
issues, and therefore re-imprisonment
● The P in addition to the damages being sought for sexual assault was trying
to recover lost wages/loss of income

Issue ● Can a P be entitled to damages for wage loss while incarcerated? NO

Reason ● In this case, if the plaintiff was able to recover damages for loss of income for
the period he was incarcerated, they would be profiting from their crime
because there was a concern that this would result in a clash between the
criminal and civil system
● He was serving a sentence given in criminal law and inherent to that
sentence is the fact that you are going to lose wages and to allow a P to
recover for what they have lost as a result of serving that sentence would
open the door to claims that would clash the criminal and civil law system

Ratio ● Unless wrongfully convicted, incarceration can’t be compensated (for loss

related to unemployment)

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 Defamation

● Very difficult area because the protection of reputation ultimately comes at a very high cost
– the restriction of freedom of speech

Defamation (Found) - Need a Balance Between Free Speech and Reputation

HILL V CHURCH OF SCIENTOLOGY OF TORONTO 1995 SCC
Facts ● Plaintiff was a crown attorney
● In the course of lengthy proceedings between the crown and the church of
scientology, an application for criminal contempt was made against the
plaintiff
● At a press conference before the application was heard, details about the
contempt application were made public announcing that Hill had breached
court orders sealing documents belonging to the church and misled a judge
● Application was ultimately dismissed and Hill sued the church and its lawyer
for defamation

Issue ● Can Hill, the P, recover damages from D because D made a defamatory
comment about P? YES

Reason ● There is a need to strike a balance between free speech and reputation
● Free speech is central to democracy although it has never been recognized as
an absolute right
● We can restrict free speech in certain circumstances
● To most people, their good reputation is cherished above all
● Good reputation is closely related to innate worthiness and dignity of the
individual
Reputation for lawyers is paramount to clients and other members of the
profession
● A lawyers practice is founded on basis of good reputation and integrity -
cornerstone of a lawyers professional life
● A lawyer won’t have a good career if their reputation isn’t good
Good reputation of the individual represents their innate dignity – a concept
which underlies all Charter rights
● Reputation also connected to right of privacy
● Publication of defamatory comments is an invasion of a persons personal
privacy and dignity and this is worth of protection

Ratio ● There is a need to strike a balance between free speech and reputation
● Publication of defamatory comments is an invasion of a persons personal
privacy and dignity and this is worth of protection

Responsible Communication Defence TEST - Defamation Allowed if it is in Public Interest to Know

this Information

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 GRANT V TORSTAR 2009 SCC
Facts ● The Toronto Star (Torstar Corp.) (D), published a story concerning the
proposed development of a golf course on land owned by Grant (P).
● The stories contained comments by local residents that were critical of P,
alleging that he was using his political influence to gain permission to build
the golf course.
● The Toronto Star published the article, and Grant sued for defamation.

Decision ● held that a defence of reasonable communication exists to combat

restriction of speech that are within the publics interest

Ratio ● The Court formulated a two part test to determine if the responsible
communication defence can be successful (this applies to any medium):
TEST:
1) The publication must be on a matter of public interest; and
● “public interest” defendant “must be shown to be one inviting public
attention or about which the public has some substantial concern
because it affects the welfare of citizens or one to which
considerable public notoriety or controversy has attached” – interest
not enough
2) The defendant must show that publication was responsible, in that he or she
was diligent in trying to verify the allegation(s), having regard to all the
relevant circumstances

Libel or Slander?
● Libel refers to written words, pictures, signs, films, statutes and conduct implying a
defamatory meaning
- Actionable without proof of damages
● Slander refers to spoken words
- Only certain classes are actionable without proof

Slander Requires Proof of Damages, Libel Does Not (Can Get Away with Slander More than Libel
Since Proof of Damages Required for Slander) - Refer to Note Above
CHICKEN V HAM
Ratio ● To succeed in an action for slander, must prove actual damage was suffered
whereas a victim of written defamation need not, so that “we have this
curious result, that in practice it is safer to insult a [person] at a public
meeting than to insult [them] on a postcard”…
- In other words, you can get away with slander easier than you can
with libel because of the standard of proof

Slander or Libel (Slander Applied) - Defendant Reading Written Material - Slander if Written Material
is Communicated by Word of Mouth
MELDRUM V AUSTRALIAN BROADCASTING CO 1932 (AUSTRALIA?)

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 Facts ● P alleged that D wrote a script and read it aloud into a broadcasting
apparatus

Issue ● Libel or slander? SLANDER

Decision ● Court held that just because D read the material did not make it libel
● Here, action might lie in slander but no libel

Ratio ● When written material is communicated to third persons it is slander no

matter whether the speaker openly reads or learns them and recites them
without reading – so long as the communication is by word of mouth, it is
slander

TEST for Defamation

In an action for defamation, Plaintiff must prove:
1) That the material was defamatory
● Would the ordinary person, after reading such statements, have an opinion of the
person’s reputation? (Murphy v Lamarsh)
2) That the material referred to the plaintiff; and
● Judge must determine as a q of law whether the material can be regarded as being
capable of referring to the P, if yes the question is whether as a q of fact the material
would lead a reasonable person who knows the P to conclude that is does refer to
the P (would a sensible reader reasonably understand that the P is the person being
defamed)
3) That the material was published

Step 1: Was the Material Defamatory (Yes) - Creates TEST for Whether Material is Defamatory
MURPHY V LAMARSH 1970 (CAN?)
Facts ● P was formerly employed as a radio newsman in the press gallery reporting
on politicians
● The D was author of a published book containing statements about the P
that he argues are defamatory
● The passage that P was “heartily detested by most of the Press Gallery and
the members” is alleged as libel

Issue ● Was the D liable for libel here? YES

Reason ● Looked at the word “detest” – strong word that suggests a bad meaning
● Where a right-thinking person can and probably will interpret the words as
defamatory, there must be liability – the tendency to defame is there
● The ordinary reader would after reading the statements think “there must be
something wrong or bad about this man to make those people detest him”

Ratio TEST:
● Would the ordinary person, after reading such statements, have an opinion

48
 of the person’s reputation?

Step 2: The Material Must Refer to the Plaintiff

● The statement must be spoken of and concerning the Plaintiff
● Must be pleaded and proven by P
● TEST: Judge must determine as a q of law whether the material can be regarded as being
capable of referring to the P, if yes the question is whether as a q of fact the material
would lead a reasonable person who knows the P to conclude that is does refer to the P
● TEST: Would a sensible reader reasonably understand that the P is the person being
defamed
- This is usually an issue in group defamation “all lawyers are thieves”

Step 3: The Material Must be Published (Applied) - Defendant Speaking in Loud Voice and Other
People Heard the Defamatory Utterances - TEST: If Defendant Intended Others to Hear
MCNICHOL V GRANDY 1931 SCC
Facts ● P and D met at the Ps drug store
● D spoke in a loud and angry tone during a conversation and uttered words
defamatory to the P
● Ps employee overheard the discussion while in a room next door that had a
hole in the wall

Issue ● Must ask if the D intended that anyone but the P should hear the defamatory
utterances (YES) – a person must be taken to intend the natural and probable
consequences of their act in the circumstances

Reason ● Here, the natural and probable consequences of uttering the words used was
that all persons of normal hearing who were within the carrying distance of
his voice would hear what he said
- This was a publication (even though D never meant for it to be
published)
- Defamation because the defendant couldn’t prove that he exercised
caution when he was shouting at the plaintiff. This happened in a
store where employees are known to work
● When it is established that the employee did hear him, a PF case of
publication is made out

Ratio ● Must ask if the D intended that anyone but the P should hear the defamatory
utterances
● When it is established that the employee did hear him, a PF case of
publication is made out, then to displace that PF case, the D must show that
he did not intend anyone other than P to hear him and that he did not know
and had no reason to expect that anyone else might be within hearing
distance

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 Step 3: The Material Must be Published (Applied) - Library Was Not Original Publisher of Work
Containing Libel but Had Knowledge it Had Libel and Told Not to Publish it and Still Did - TEST for
Plaintiff to Show it Was Not Published (Onus on Defendant)
VIZETELLY V MUDIE’S SELECT LIBRARY
Facts ● P brought an action against a library for circulating an edition of a book that
contained defamatory statements about him, after the publisher had
requested all of the editions to be returned to remove the libel

Issue ● Was there publication or was this innocent dissemination? PUBLICATION,

library liable for libel

Reason ● The library was given notice and they ought to have read the notice
● Just because you don’t read the notice, doesn’t mean you don’t have notice
The publisher did not intend to defame the P, but in the circumstances they
should have known it would defame the P – there is an extension of intent

Ratio ● Where someone is not the original publisher or printer of the work which
contains a libel, but has only taken a subordinate part in disseminating it, in
considering whether there has been a publication by that party, the
particular circumstances under which they disseminated the work must be
considered
● If they did it in the ordinary course of business, the nature of the business
and the way in which it was conducted must be considered
● Even where the dissemination of the work is PF publication, D may be held
not to have published it where he shows (D’s Onus):
1) He was innocent of any knowledge of the libel contained in the work
he disseminated
2) Nothing in the work or about how it came to him which ought to
have led him to suppose it contained libel, and
3) That when the work was disseminated it was not by any negligence
by him that he did not know it contained libel

Basis of Liability - Defendant Liable Even Though Not Referring to Plaintiff in Article, As They Have
Nonetheless Injured the Plaintiff
HULTON & CO V JONES 1910 UK
Facts ● Someone published an editorial calling P a cheater, but they were talking
about someone else.

Issue ● Is the defendant liable for libel even though it was not referring to the
plaintiff in the article? YES

Reason ● A person charged with libel cannot defend himself by shewing that he
intended not to defame the plaintiff
● He has nonetheless imputed something disgraceful and has nonetheless
injured the plaintiff

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 Ratio ● “Libel is a tortious act. What does the tort consist in? It consists in using
language which others knowing the circumstances would reasonably think to
be defamatory of the person complaining of and injured by it. A person
charged with libel cannot defend himself by shewing that he intended in his
own breast not to defame, or that he intended not to defame the plaintiff, if
in fact he did both. He has nonetheless imputed something disgraceful and
has nonetheless injured the plaintiff”

Defamation (Found) Even Though Newspaper Had No Intent to Defame Plaintiff - Duty to Fact Check
and Make Sure Information Published is Accurate and Reliable
CASSIDY V DAILY MIRROR NEWSPAPER 1929 US
Facts ● News paper published something about a woman that made her out to be
immoral and it wasn’t true

Issue ● Was the newspaper liable for defamation even though they did not intend to
hit the claimant? YES

Decision ● Court held in favour of the claimant, that the article could make the
reasonably minded person believe that the claimant’s moral quality was
questionable and that it did not matter if the defendant did not intend to hit
the claimant

Ratio ● There is a duty to fact check and make sure information is accurate and
reliable
● Defamation may happen indirectly and unknowingly – liability for libel does
not depend on the intention of the defamer

Defences to Defamation

● Yes, it’s defamation but it’s justified

Truth
● The law will not permit a [person] to recover damages in respect of an injury to a character
which they do not, or ought not, possess”
● Truth is a complete defence

Absolute Privilege
● Certain types of communication are protected by absolute privilege
● In these cases, even though the elements were met to show a PF case of defamation, the
claim will not stand
● Freedom of speech prevails in such cases – even where information is false

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 ● Underlying policy reasons are that certain types of communication are so vital that they
must not be fettered by even the threat of legal action in defamation – speakers must be
free to say whatever they wish without the fear of legal action
● For example, this applies to the acts of high executive officers in the performance of their
official duties, statements made during parliamentary proceedings and judicial proceedings,
communications between spouses, etc
● The importance of free expression outweighs concerns underlying defamation

Qualified Privilege
● Protects defamatory material published on certain occasions
● Attaches to the occasion/situation, not the communication
● Unlike absolute privilege, the privilege on these occasions is qualified by the requirement
that there has been no malice on the part of the publisher of the material
- Unlike absolute privilege which is absolute, if a P is claiming malice against the D,
it will negate the defence of qualified privilege
● Plaintiff can defeat the defence by showing malice
● Again, idea is to allow free speech to prevail over reputation based on the importance of
certain situations
● Extends to publications made in the discharge of a public or private duty in matters where
their interests are concerned – no fixed situations in which this applies
● The basis of qualified privilege occasions is the notion that the publisher had an interest or
duty to convey the material to a person who had a reciprocal interest or duty to receive it
● TEST: What is seen as important is whether people of ordinary intelligence and moral
principles would have considered there to have been a duty

Four Categories of Qualified Privilege:

1) Protection of Ones Own Interest
● What is somebody saying to attack you and what are you saying in response
● If you are simply responding in a way that is defining what is coming at you in a
proportionate way, then this defence will apply
2) Common Interest
● There is a common interest in hearing the communication that is being made
3) Moral or Legal Duty to Protect Another’s Interest
● Courts appear to be more willing to find QP where statements are made in response
to specific inquiries than when they are volunteered
- For example, where employer gives a character reference about a former ee
at the request of new er is more likely to be protected than one who
volunteers the information
4) Public Interest

1) Protection of Ones Own Interest (Applied but Malice Negates Defence) - Malice Negates Qualified
Privilege Defence (Knowing Statements You Are Making Are Not True)
SUN LIFE ASSURANCE V DALRYMPLE 1965 SCC
Facts ● D were company officers concerned with the mass resignation of agents –

52
 this would cost considerable resources
● The D made the statements in the conduct of their own affairs where their
own interests were concerned
● Statements by the employee Ds were attempts to show agents that their
loyalty to their employer was not justified in their own interests
- The comments that were made were putting into question the
loyalty of the agents that were resigning. However, they were said in
the context of wanting to protect their employer and were made in
public

Issue ● Were the slanders spoken on occasions of qualified privilege? YES but malice
also found, therefore negating the defence

Decision ● Not having an honest belief in the material published is proof of malice

Reason ● When a person is making these statements, do they honestly believe in the
statements that they’re making?
- The challenge comes in proving it - When you’re making a claim with
- In honest belief in those claims, it could still be justified as a defence
to defamation
● People have the right to say things as a purpose of protecting their own
interests – which is what the employees were doing in this case, but because
of the malice (they weren’t true), their defence failed

Ratio ● Malice (not having an honest belief in the material published is proof of
malice) negates protection of ones own interest defence

2) Common Interest (Applied) Because It Was Circulated Between Union Members and About
Something that May Impact the Group
BEREMAN V POWER PUBLISHING CO 1933 US
Facts ● Article accused P of having turned traitor to the union by switching to
nonunion employer.. “these three labor spies have sold their manhood, if
they ever possessed any, for a paltry few dollars”

Issue ● Whether the defence of common interest applies? YES

Reason ● The life of unions depends on loyalty – nothing is of greater interest than
information of acts of disloyalty
● It is necessary that they be informed to protect themselves
● This publication was established to send such information to labor unions at
large and their members – exclusive circulation – different from general
newspaper

Ratio ● There is a common interest in hearing the communication that is being made
● A communication may lose its qualified privilege character by using language

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 of defamatory nature not warranted by the occasion that called for the
publication
- We are looking at the nature of the communication and who it was
published to/why that group would have to hear it because if it was
not relevant than this defence would not apply

3) Moral or Legal Duty to Protect Another’s Interest (Not Found) - Communication Loses Privilege
When Goes Beyond Limits of the Duty - Sent Letters to Plaintiff’s Wife/Allegations of Cheating Case
WATT V LONGSDON 1930 (UK? KINGS BENCH)
Facts ● P sued D for sending his wife a letter that said he had immoral relations with
the housemaid
● Wife sued for divorce

Issue ● Was there some legal or moral duty to communicate? NO

Decision ● The Court finds that there was not a moral or social duty in the Defendant to
make this communication to the Plaintiff’s wife as to make the occasion
privileged.

Reason ● Here, judge believed that “the great mass of right-minded men in the Ds
position would have considered it their duty to inform of the suspicion fallen
on the P” but held no moral or social duty in this case

Ratio ● Communications may lose privilege when: they exceed the privilege of the
occasion by going beyond the limits of the duty or they are published with
malice

4) Public Interest (Not Applied) - Publications Made Must Include Truth - Cannot Allow Qualified
Privilege to Apply to Political Campaigns too Broadly
GLOBE AND MAIL V BOLAND 1960 SCC
Facts ● Alleged malicious editorial about P political candidate

Issue ● Whether the publication was protected through qualified privilege? NO

Decision ● [T]he learned trial judge has confused the right which the publisher of a
newspaper has, in common with all Her Majesty’s subjects, to report
truthfully and comment fairly upon matters of public interest with a duty of
the sort which gives rise to an occasion of qualified privilege.

Reason ● Fair comment defence would have been a better defence in this setting
- The court says we are not going to have qualified privilege apply,
however, sometimes statements are made in truth (defence),
however, sometimes they might be false but still warrant a defence
because they include some truth (fair comment)

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 Ratio ● To allow qualified privilege to apply to all campaign related statements
would mean that anyone who offers themselves as candidates must be
prepared to lose their reputation without redress unless they can prove
malice – this sacrifice would do more harm than good
● However, extending privilege too broadly would do more public harm than
good as it would deter “sensitive and honourable men from seeking office of
trust and leave those offices open to others who have no respect for their
reputation”

Fair Comment
● Fair comment on matters of public concern based in fact is also protected
- Government activity, political debate, public affairs
- Works of art in public, performance, music and literature
● Comment must be supported by fact in the communication
● Cannot present the comment as an allegation of fact ie. X did something distasteful thing –
this is an allegation of fact not a comment
● X did this thing and that thing is distasteful – comment plus fact
● Facts must be true to be a fair comment
● A fair comment is this idea that you have a fact that is grounded in truth, and then you have
a comment

Fair Comment (Applied) - Criticism Cannot Be Used as a Cloak for Personal Opinions, Comments
Must be based in/Supported by Fact
MCQUIRE V WESTERN MORNING NEWS 1903 UK
Facts ● P actor and composer of a play was given a harsh publication review by a
newspaper

Issue ● Whether fair comment stood as a defence? YES

Decision ● The court found that the criticism published by the defendants, although
harsh, did not overstep the boundaries of fair comment.
● The notice published in the newspaper was considered a dramatic criticism
of a publicly performed play, and there was no evidence of personal malice
or false statements of fact.

Ratio ● Criticism cannot be used as a cloak for personal opinions not arising out of
the subject matter or not based in fact
● To be considered “Fair,” the comment must be supported by fact - these
statements of fact must be true. Fair embraces the meaning of honesty and
relevance

New Defence for Defamation and TEST for Defence (Responsible Communication Defence) -
Defamation Allowed if it is in Public Interest to Know this Information
GRANT V TORSTAR 2009 SCC

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Facts ● The Toronto Star (Torstar Corp.) (D), published a story concerning the
proposed development of a golf course on land owned by Grant (P).
● The stories contained comments by local residents that were critical of P,
alleging that he was using his political influence to gain permission to build
the golf course.
● The Toronto Star published the article, and Grant sued for defamation.

Decision ● Held that a defence of reasonable communication exists to combat

restriction of speech that are within the publics interest

Ratio ● The Court formulated a two part test to determine if the responsible
communication defence can be successful (this applies to any medium):
TEST:
1) The publication must be on a matter of public interest; and
● “public interest” defendant “must be shown to be one inviting public
attention or about which the public has some substantial concern
because it affects the welfare of citizens or one to which
considerable public notoriety or controversy has attached” – interest
not enough
2) The defendant must show that publication was responsible, in that he or she
was diligent in trying to verify the allegation(s), having regard to all the
relevant circumstances
● In considering whether the publication is responsible, examine:
● Seriousness of the allegation – degree of diligence increases with
seriousness
● Public importance of the matter
● Urgency of the matter – did the public’s need to know require D to
publish when they did
● Status and reliability of the source – the less trustworthy the source,
the greater the need to use other sources to verify it
● Whether the Ps side of the story was sought and accurately reported
(giving them the opportunity to give their side/due diligence on the
defamers end)
● Was the statement necessary to communicating on the matter to the
public
● Reportage – repetition rule holds that repeating a libel has the same
legal consequences as originating it – an exception to this is where
they were fairly reported statements whose public interest lies in the
fact that the statement was made rather than its truth
● Note: the greater these elements are, the more likely they will be
find to be responsible

Business Torts

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 ● Tort law governs a wide array of business activity
● Mostly regulated through legislation

Tort of Deceit (Not Found) - In Action for Deceit, must Show Fraud - Fraud Proved when Shown that
Representation Was Made Knowingly/Without Belief in its Truth - Reasonable Person TEST to
Determine Knowledge
DERRY V PEEK 1889 UK
Facts ● Directors of a tramway company assert that they are empowered to use
steam-powered cars
● They did not actually have the authority but honestly believed it would come
in time
● Government consent was never obtained and as a result the company falls
into liquidation
● Plaintiff investor invested on the strength of that assertion and sued the
company for deceit

Issue ● Whether the plaintiff has a claim for deceit? NO

Decision ● In an action for deceit, plaintiff must show more than misrepresentation, but
must show fraud
● Fraud is proved when it is shown that a representation was made knowingly
or without belief in its truth; recklessly

Reason ● Found that it was not deceit - the D reasonably believed and was relying on
the statements they made and in mind they were true

Ratio ● Takeaway: in the tort of deceit, any statements being made have to be made
knowing they were false/believing they were not true
● To prevent something from being fraudulent, there must be an honest belief
in its truth
● In an action for deceit, plaintiff must show more than misrepresentation, but
must show fraud
● Fraud is proved when it is shown that a representation was made knowingly
or without belief in its truth; recklessly
TEST:
● To make the determination, apply the reasonable person test – would a
reasonable person situated as the defendants, with their knowledge and
means of knowledge, might have believed what they say they believed and
consider that their representation was substantially true?

Fraudulent Misrepresentation (Not Found) - Home Being Sold, Murder Committed in Front of the
Home, Purchaser Backs Out - TEST for Fraudulent Misrepresentation
WANG V SHAO 2019 BCCA

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 Facts ● Vendor enters contract of sale of her home with purchaser
● Purchaser later finds out that there was a murder in front of the home which
was not disclosed when asked about why the vendor was selling
● Purchaser refused to complete the deal and claimed fraudulent
misrepresentation for failing to disclose the murder

Issue ● Was the vendor’s answer to the buyer’s question a misrepresentation by

omission? NO
● Whether there was fraudulent misrepresentation? NO

Reason ● The Court of Appeal ruled there was no obligation to provide further
disclosure. Ms. Wang and her agent did not know the fact of the murder
would be material to the buyer
How does caveat emptor apply to the buyers right to know answers?
● It applies to the materiality of the home itself - is the murder impacting the
home in any material way? The answer is no

Ratio TEST:
To show fraudulent misrepresentation, must show:
1) A representation of fact to the victim
2) Representation must be false
3) Party making rep must have known it was false
4) Party making rep must have intended the victim to act on the rep
5) Victim must have relied on it

Inducing Breach of Contract (Suing Third Party)

● Where there is a breach of contract between two parties caused by a third party, can the
innocent party sue the third party in addition to the breaching party in contract law? Why or
why not?
- In contract law, because of privity of contract, only parties to the contract can sue.
However, through tort law, an innocent party to a contract, can sue a third party
that is not privy to the contract

Inducing Breach of Contract/Suing Third Party for Breach (Applied) - TEST Including Elements
Required to Find Third Party Liable for Breach of Contract - If Party Maliciously Interferes in Contract
Performance, They Are Liable in Damages for that Interference
LUMLEY V GYE 1853 (UK)
Facts ● Lumley (Plaintiff) entered into a contract with Miss Wagner for her to sing for
three months at Plaintiff’s theatre. Under the contract Wagner was not
permitted to sing or use her talents elsewhere.
● Gye (Defendant) then entered into a deal with Wagner for her to sing at his
theatre for more money.
● Plaintiff sued and asked that Defendant pay for damages for maliciously
interfering with his contract with Wagner.

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Issue ● If a party maliciously interferes in a contract performance, is he liable in
damages for that interference? YES, it was held to be a tort maliciously to
induce a breach of contract.

Ratio ● Any malicious interference by a third party with one's contractual rights is
actionable by the injured party
Requires: *** know this
● There must be a contract between plaintiff and breaching party
● Defendant must have intended to induce a breach of the contract
● Defendant knew contract existed
● Defendant knew their conduct would lead to its breach
● Plaintiff must have suffered damages
● In some cases, the interference with contractual rights may be justified

Inducing Breach of Contract/Suing Third Party for Breach (Not Applied) - COUNTER/ Defence to
Lumley v Gye (Justification or Legal Excuse) - Theatre Workers Paid Under Minimum Wage and
Supplement Earnings by Immorality, Defendant Boycotted Manager
BRIMELOW V CASSON 1924 UK
Facts ● A theatrical manager persistently paid his chorus girls so little that they were
forced to supplement their earnings by immorality.
● Members of an actors' protection association (union) boycotted the manager
by inducing theatre proprietors not to engage him (induced theatre-owners
to break their contracts with the plaintiff, with intention of driving the
plaintiff out of business)
● The defendants pleaded justification

Issue ● Was the defendants actions justified? YES

Reason ● Casson was found to be justified in his actions as the union owed a duty of
care to their members and a duty to take all necessary steps to compel
Brimelow to pay his employees a fair living wage, so they should not be
driven to prostitution to supplement their income.
● Moral interference was deemed a justification for causing injury and loss to
Brimelow.

Ratio ● The rule as usually stated is that any malicious interference by a third party
with one's contractual rights is actionable by the injured party unless there is
some legal excuse or justification.

Tort of Intimidation (Applied) - Lists Two Contexts Tort of Intimidation May Happen - Intimidation
Must Involve a Threat to do an Illegal Act - Union Members Threatened to Go on Illegal Strike if
Plaintiff Not Fired; Subsequently, Plaintiff was Fired
ROOKES V BARNARD 1964 UK
Facts ● Plaintiff was dismissed from his employment when union members

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 threatened to go on an illegal strike if the plaintiff was not dismissed

Decision ● HL found it was unlawful to threaten to breach a contract

- There is a threat to do something illegal
- The court finds that it is unlawful to threat legal action

Ratio The tort of intimidation might happen in two contexts:

1) Intimidation of the plaintiff themselves – intentionally compelling a person,
by threating to do an illegal act, to do something that causes loss to them
2) Intimidation of other persons to the injury of the plaintiff – intimidating
others with the intent to compel them to act in a way that causes loss to the
plaintiff ie. intimidating customers to withdraw their business from a plaintiff
● Intimidation must involve a threat to do an illegal act
● Must be able to legally resist the defendant’s threat and the failure to do so
causes harm to plaintiff

Unlawful Means Tort (Not Applied) - Tort Available in Situations Where Defendant Commits an
Unlawful Act Against a Third Party Which Intentionally Cause Harm to the Plaintiff
AI ENTERPRISES LTD V BRAM ENTERPRISES LTD 2014 SCC
Facts ● Five members of a family were involved in the ownership/management of an
apartment building
● One member of the family managed the building for a fee (the appellants
Alan Schelew and A.I. enterprises Ltd.).
● In 2000, four members representing the majority decided to sell the building.
The relationship between the parties was regulated by a “syndication
agreement”. The syndication agreement provided that if the majority
decided to sell, the minority would have the right to purchase the building at
its appraised value, failing which the property could be marketed to the
public.
● The managing member disagreed with the sale. From spring 2000 to fall
2002, the majority tried to sell the building to interested third parties
without success. The managing family member took a series of actions to
thwart the sale.
● The managing family member eventually purchased the property but the
majority argued that the sale was two years later than expected and it was
sold for an amount smaller that the majority could have gotten from a third
party purchaser. The result was that the ultimate sale price was nearly
$400,000 less than it otherwise might have been.
● They argued at trial that the managing member and his company breached
their obligations and acted unlawfully towards them and committed an
economic interference resulting in losses and they sought damages.
● The third parties were the potential purchasers

Issue ● Whether the dissenting family member and his company were liable for what

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 the trial judge referred to as the tort of unlawful interference with economic
relations/the economic tort of interfering with contractual relations by
unlawful means? NO

Decision ● Found that the unlawful means tort had not been made out by the
respondents.
● The Court found that the focus of the unlawful means tort is unlawful
conduct that intentionally harms the plaintiff’s economic interests.

Ratio ● The unlawful means tort is available in situations where a defendant

commits an unlawful act against a 3P which intentionally causes harm to
the plaintiff
● Conduct is unlawful if it is actionable by the 3P – does not create a new
actionable wrong but expands who may recover from the same actionable
wrong
● Will often arise where there are economic interests at stake
● Limited scope should apply

Damages

1) Compensatory are most common – purpose is to place the P in the position they were in
had the tort not happened
2) Punitive damages are awarded above compensatory damages to punish the defendant and
deter future conduct – these are rare
3) Aggravated damages is a special form of compensatory damages that are designed to
recognize aggravated injury such as humiliation

Special and General Damages

● Special damages have occurred prior to trial and are capable of direct calculation (ie.
reimbursement for medication, assistive devices paid out of pocket)
● General damages are awarded for losses into the future – ie collision victims

Non-Catastrophic Personal Injury Cases

● Most cases in personal injury involve non-catastrophic injuries
● In automobile collisions, P must meet threshold in order to recover:
- TEST: Permanent serious disfigurement or permanent serious impairment of an
important physical, mental or psychological function
● Case law is used to determine how to quantify damages for pain and suffering for various
injuries – head injury, ankle fracture, spinal strain, lacerations, depression, etc.
● In automobile collisions, P must meet threshold – general damages must meet the
threshold amount ($138,343.86 in 2022) otherwise a deductible of $41,503.50 (2022) will
apply to any award

General Damage in Catastrophic PI Cases

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 ANDREWS V GRAND & TOY ALBERTA LTD 1978 SCC
Facts ● A young man was rendered quadriplegic following a car collision for which
his employer was partially responsible (25% liable)
● Liability was not in issue

Decision ● Determine life expectancy and calculate cost per year for life expectancy ie.
50 years for a 23 year old was estimate in this case

Ratio ● Court dealt with the proper approach to assessing damages

● Damages are properly dealt with under separate heads

Pecuniary Losses (quantifiable)

Future Care Costs
● The amount which may be reasonably expected to be expended in putting the injured party
in the position they would have been in if they had not sustained the injury
● May include cost of adjusting home space, renovations, future treatment, assistive devices
● Determine life expectancy and calculate cost per year for life expectancy ie. 50 years for a 23
year old was estimate in this case (Andrews case)
1) Future Care: Loss of Housekeeping/Home Maintenance
● In what housekeeping duties did the plaintiff engage prior to the injury? How has that been
impacted following the injury?
● If P used to plow the snow, clean the home, laundry, cooking and can no longer perform
such tasks, evaluate cost of having to pay someone to do them
2) Special Damages
● Cost of medication, devices, treatment, or anything that plaintiff incurred out of pocket in
relation to the injuries
3) Income Loss / Loss of Earning Capacity
● May include a compromise claim where difficult to prove direct income loss ie. perhaps P
was not employed at time of MVA but was in process of obtaining employment
● Where plaintiff is young, you are anticipating loss of future earning capacity – what sort of
career would the P have had had the injury not occurred?
● Considerations in assessing plaintiffs lost competitive advantage in the marketplace:
- P is less capable overall from earning income, P is less marketable as an employee to
potential employers, P has lost ability to take advantage of all job opportunities
which might otherwise have been open to them, P is less valuable to themselves as a
person capable of earning income in a competitive labour market

Non-Pecuniary Losses (not quantifiable)

1) Pain and Suffering / Loss of Enjoyment of Life
● Examine the difference between the Plaintiff as they were before the injury and after
● How has their life changed? How have they changed? What did they enjoy before the injury
that they can no longer do?
● These are not typically very high awards
● Subject to the deductible in MVAs (motor vehicle accidents)

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Collateral Sources
● Collision victims will often obtain benefits from a variety of sources ie. insurance policies,
CPP, OHIP, EI, etc.
● Generally the plaintiff must exhaust collateral benefits before claiming from the defendant
● Rule against double recovery
- Meant to prevent a P from claiming the same benefits from multiple sources
● Accident benefits paid must be deducted from tort claims
- In some cases, subrogation is required – ie. OHIP is entitled to reimbursement for
costs paid in relation to injuries caused by tortfeasor (does not apply in MVA cases)

Family Law Act Claims

● Family members may also claim for the loss of care, guidance and companionship of the
injured persons, actual expenses incurred for the benefit of the injured person, funeral
expenses, travel expenses, housekeeping and care expenses
● Spouses may claim for loss on behalf of injured spouse
● Also applies in fatal collisions – general damages here award the family members for the loss
● Damages are typically lower unless dependency can be shown

Punitive Damages

● Punitive damages awards are typically explored in situations in which bad faith conduct has
occurred.
● Punitive damages awards are quite rare and exceptional in insurance cases

Punitive Damages (Applied) - Punitive Damages Rare - Lists Factors Influencing Bad Faith - Purpose =
Punishment, Deterrence, Dununciaton
WHITEN V PILOT INSURANCE CO 2002 SCC
Facts ● Court reinstated jury’s $1,000,000 punitive damages award resulting from an
unjustified denial of fire insurance claim, taking into account the insurer’s
bad faith in using the arson defence
● Expert evidence ruled that the fire was accidental yet insurer maintained
defence that the fire was deliberately set by the insured
● After the fire, the insurer terminated payments without informing the
insured and attempted to settle the claim at substantially less than its fair
value.
● The insurer used the plaintiff’s vulnerable financial status as the sole basis for
their defence throughout the entire proceedings that the fire was a result of
arson

Issue ● Whether the award of punitive damages in this case was a rational response
to the respondent’s misconduct? YES

Ratio ● They are granted in exceptional cases for “malicious, oppressive and high-

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 handed misconduct that offends the Court’s sense of decency”
● Limited to misconduct that demonstrates a marked departure from ordinary
standards of good behaviour.
● In considering punitive damages, the court should focus on relating the
particular facts of each case to the underlying purposes of punitive damages
and ask “how, in particular, an award would further one or others of the
objectives of the law” – punishment, deterrence and denunciation
● The governing rule in determining the amount of the award is
proportionality, meaning that the award must be proportionate to the
insurer’s conduct in the case.
● Whiten emphasized that the more reprehensible (blameworthy) the conduct,
the higher the “rational limits” to the award
● While many factors may influence the level of bad faith conduct of the
insurer, the following have been noted by Canadian authorities:
- whether the misconduct was planned and deliberate;
- the defendant’s motive;
- whether the defendant persisted in the misconduct over a lengthy
period;
- whether the defendant attempted to conceal its misconduct;
- defendant’s awareness of the wrongfulness of their actions;
- whether the defendant profited from the misconduct; and
- whether the interest of the plaintiff deprived by the conduct was
known to be personal to the plaintiff

Punitive Damages (Not Applied) - Set the Bar for Punitive Damages/Establishing Bad Faith High
(Insurance Companies Rely on this Case) - Insurance Terminated Pay Based on Surveillance Videos
Despite No Medical Evidence that Insured is Capable of Working
FIDLER V SUN LIFE ASSURANCE CO OF CANADA 2006 SCC
Facts ● In this case, the insurer denied the plaintiff LTD benefits to which she was
entitled for over 5 years without medical evidence to support that she could
return to work.
● The insured received LTD benefits from 1991 until 1997, when her insurer
advised her that, due to a non medical investigation (video surveillance)
demonstrating that her activities were incompatible with her alleged
disability, her benefits would be terminated in less than two months.
● The insurer had no medical evidence that she was capable of returning to
work. Video was basis for decision – showed insured entering/exiting her
vehicle, driving, shopping and climbing into the rear of her vehicle.
● This video was taken for about five hours on each of three days and for one
hour on a fourth day, yet an internal memo of the insurer indicated that she
was active for five full days.
● Insurer argued that video diminished the insured’s credibility which casted
doubt that she met the test for disability.

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 ● Insurer confirmed decision despite having medical evidence that insured
was not yet capable of doing any work
Decision History
● The trial judge awarded her $20,000 in damages for mental distress but
found that no bad faith on the insurer’s part warranted punitive damages.
● The Court of Appeal reversed the trial judge’s decision on punitive damages
and awarded her $100,000.
● The Supreme Court of Canada restored the trial judge’s decision on punitive
damages as the plaintiff was held to have only been entitled to the $20,000
damages award.

Issue ● Can Fidler recover punitive damages from Sun Life Assurance Co? NO – Bar is
set high

Reason ● Although the Court recognized the allegations listed in the insurer’s internal
documents, it was also emphasized that the insured’s behaviour in the
surveillance together with the ambiguity in the medical assessments reduced
the strength of the bad faith argument
● The Court admitted that the conduct of the insurer in denying this claim for
five years without adequate medical information was both extremely
troubling and inappropriate, but it was nonetheless not enough to interfere
with the trial judge’s finding that there was no breach of the duty of good
faith

Ratio ● Insurance companies have consistently relied on the 2006 Fidler decision in
justifying the high bar placed on establishing bad faith conduct.
- Insurance companies often rely on this case to support the rarity of a
punitive damages award and the high bar placed on plaintiffs in
proving such claims
● There are also challenges in the relationship between Ps and Ds sometimes
which enables perceived bad faith.
● Although Fidler has certainly cast doubt, and possibly generated fear, among
plaintiffs in attempting to hold an insurer accountable for bad faith, recent
case law offers insight into the type of conduct that may in fact overcome the
Fidler bar.

Post-Fidler Jurisprudence and its Implications on Bad Faith

● The 2006 decision in Fidler initiated a change in favour of the insurance industry.
● Recent case law, however, has re-opened the door on punitive damages in insurance
contracts and suggests that Fidler might be better confined to its own factual circumstances.
● The following decisions readily leave open the possibility for Fidler to be distinguished in any
given case.
● Notice, the trials are awarding more and COA reducing that amount but they are still
upholding the punitive awards

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Punitive Damages (Applied) - Insurance Terminated Pay Based on Surveillance Videos Despite No
Medical Evidence that Insured is Not Disabled/Capable of Working
FERNANDES V PENNCORP LIFE INSURANCE CO 2013 ONSC
Facts ● In this case, the insurer was paying disability benefits for periods between
2004 and 2005 until a surveillance video demonstrated that the insured was
doing work around his home.
● The decision to terminate the benefits was made in the absence of any
medical evidence stating that the insured did not have a disability.
● Moreover, the decision was not disclosed to the insured until five months
later.

Issue ● Whether Fernandes can recover punitive damages? YES

Decision ● COA applied the principles as outlined in Fidler but held that the test for
punitive damages was met.

Reason ● The trial judge noted that the activities shown in the surveillance did not
even closely indicate that the insured was able to return to work as a
bricklayer and that there was no evidence that the insurer considered the
detailed description of the insured’s job duties disclosed with his initial
application.
● The judge held that the insurer representative acted in bad faith and that
“the denial of benefits for six years amounted to a denial of coverage or
delay of payment in order to take advantage of the insured's economic
vulnerability or to gain bargaining leverage in negotiating a settlement.”
● The trial judge awarded the plaintiff $200,000 in punitive damages and
$100,000 in aggravated damages for mental distress.
● The Court of Appeal affirmed the decision but subsequently reduced the
mental distress damages from $100,000 to $25,000. The Court noted that
the plaintiff only requested $25,000 in mental distress damages and since
such damages are meant to be compensatory, not punitive, the Courts award
that was 4 times greater than the plaintiff’s request was unjustified.

Ratio ● Counter argument to Fidler

Punitive Damages (Applied) - However, Appeal Court Reduced Amount as Insurer Did Not Deny
Coverage - Takeaway: Where Ambiguities in Policy Exist, Interpret it in Favour of Insured
INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC V BRINE 2016 SCC
Facts ● This involved a multifaceted dispute between an insured and his insurer, who
deemed him to have a “total” disability under the policy.
● One of the allegations made by the insured was that the insurer breached
the duty of utmost good faith in handling his claim. The insured sought a
punitive damages award.

Issue ● Whether Brines can recover punitive damages? YES, however, amount

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 received reduced by COA

Decision ● The Court held that the insured was entitled to punitive damages and noted
that there was an unquestionable need for deterrence “as the misconduct
insinuated the bad faith into the very integrity of the litigation process” and
“individual representatives must be deterred from engaging in the eliciting of
misleading evidence, particularly that which intends to paint their insured in
a negative light.” A punitive damages award of $500,000 was awarded.
● In 2015, the Court of Appeal, however, found the punitive damages award
to be excessive and reduced it $60,000.
● The Court of Appeal noted that this was not a case where the insurer denied
the insured coverage nor that the insurer was attempting to profit from the
plaintiff’s vulnerability.

Ratio ● Court stated that where ambiguities exist, they should be interpreted in
favour of adopting a policy that favours the insured rather than the insurer
who drafted the policy, and that regard should be directed to the reasonable
expectation of the parties.
● Key takeaway: the award is still being given despite the reduction and that
we need to deter bad behaviour

Punitive Damages (Applied) - However, Appeal Court Reduced Amount - Insurance Company Did Not
Make Any Payments Until 9 Years After Accident
BRANCO V AMERICAN HOME ASSURANCE CO 2013 SASKATCHEWAN
Facts ● In this case, the insured was injured in a workplace incident and was found to
have a permanent disability by several insurer requested physicians.
● The insured was receiving disability benefits from a workplace injury, but the
benefits were subsequently terminated because he failed to cooperate in
rehabilitation programs.
● The insured claimed under his workplace insurer, AIG, as well as the
corporate insurer, Zurich, who provided long-term disability (LTD) benefits to
employees.
● Zurich did not make any payments until nine years following the accident.

Issue ● Whether Branco can recover punitive damages? YES, however, amount
received reduced by COA

Decision ● The trial judge initially awarded punitive damages against both AIG and
Zurich, in the amounts of $1.5 million and $3 million, respectively, for their
handling of the insured’s disability claim.
● The Court of Appeal later reduced this award to a total of $675,000 in
punitive damages.

Reason ● The Court of Appeal held that the insurers breached their duty of good faith
by suspending the insured’s benefits despite medical evidence to the

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 contrary; delaying the payment of benefits by several months; attempting to
leverage the insured into accepting an unfairly low settlement; failing to pay
a claim that was approved and concealing that approval; and failing to pay
for a substantial period.

Ratio ● Branco specifically made mention of the failure of punitive damages awards
in previous cases to deter insurers from the same conduct that continuously
gives rise to LTD litigation and used this to justify a higher quantum of the
award in the hopes of deterring dishonest behaviour in the future.
● Key takeaway: the award is still being given despite the reduction and that
we need to deter bad behaviour

Punitive Damages (Applied) - Insurer Required Plaintiff to Meet More Stringent Test than One in
Insurance Plan - Financial Exploitation (Refused to Fund Plaintiff’s Medical Treatment Knowing
Plaintiff Couldn't Afford It)
GREIG V DESJARDINS FINANCIAL SECURITY LIFER ASSURANCE COMPANY 2019 BCSC
Facts ● The insurer required the plaintiff to meet a more stringent test for disability
than required by the plan; unilaterally decided that the plaintiff must
attended at his doctor every month or two which was not required by the
plan; indicated that the plaintiff failed to seek optimal treatment but refused
to fund such treatment while knowing that the plaintiff could not afford it.

Issue ● Whether Greig can recover punitive damages? YES

Decision ● The BC Supreme Court found that there was an egregious breach of the
insurer’s duty of good faith and accordingly awarded the plaintiff punitive
damages in the amount of $200,000.

Reason ● The Court noted that the conduct of an insurer representative in ignoring the
plaintiff’s file and new medical evidence while focusing exclusively on the
litigation process was “high-handed, arbitrary, and worthy of rebuke.” The
plaintiff also requested a reconsideration and was ignored for several
months.
● The plaintiff was financially vulnerable and the defendant, knowing of the
plaintiff’s circumstances, continued to ignore incoming medical information
and requests for appeal.
- Financial exploitation - refused to fund such treatment while
knowing that the plaintiff could not afford it

Punitive Damages (Applied) - Insurers Have Obligation to Weigh Evidence Fairly and in Manner
Consistent with the Policy Wording AND Failing to Obtain Documents Substantial to Case = Complete
Dereliction of Duty and Regarded as Bad Faith
GODWIN V DESJARDINS FINANCIAL SECURITY INVESTMENTS
Facts ● Court held that two main aspects of the plaintiff’s claim handling warranted a

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 $30,000 punitive damages award.
Issue 1:
● The first main issue was in relation to the insurer’s own occupation
assessment. The Court found that the insurer breached its duty of good faith
when it rejected the plaintiff’s “own occupation” claim after “improper
considerations” and concluding “without any foundation that motivational
factors were dominating” the plaintiff’s claim.
● The Court noted that the claims examiner found that the plaintiff failed to
meet the own occupation test without any consideration to her psychiatric
condition, thus the decision that she was fit to return to work was
unsubstantiated.
● Moreover, the adjuster imported language into the policy that was not
present.
Issue 2:
● The second major concern was the insurer’s failure to obtain a recording of
the plaintiff’s medical examination as requested by her counsel.
● The expert report contained serious flaws and the recording was offered in
response to the report, however the insurer failed to consider it.

Decision Issue 1:
● The Court held this conduct to be fundamentally unfair and reiterated that
“insurers have an implicit contractual obligation to weigh evidence fairly
and in a manner consistent with the policy wording.” The Court held that
the conduct of the insurer went so far as to create the impression that the
claims examiner was looking for reasons to avoid the insurer's coverage
obligations.
Issue 2:
● The insurer’s failure to take any steps to obtain a copy of the recording was
“a complete dereliction of duty that it must be regarded as having been in
bad faith.

Reason ● The Court found that the claims examiner denial of benefits was severely
flawed as “she was looking for reasons to deny coverage, even to the point of
manufacturing reasons, rather than trying to find a basis in the evidence for
paying the claim”.

Ratio ● “Insurers have an implicit contractual obligation to weigh evidence fairly and
in a manner consistent with the policy wording.”
● Failure to obtain expert records important to case is a complete dereliction
of duty and regarded as bad faith

Post-Fidler Cases
● These cases clearly emphasize the important role of deterrence as an objective in punitive
damages awards and the Courts in each case felt a need to deter insurance companies from
continuing to employ bad faith tactics in performing their obligations.

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 ● Branco specifically made mention of the failure of punitive damages awards in previous
cases to deter insurers from the same conduct that continuously gives rise to LTD litigation
and used this to justify a higher quantum of the award in the hopes of deterring dishonest
behaviour in the future.
● Another important factor is that the amount of the award may be influenced by the length
of time for which the insurer inadequately handles a claim. In other words, the longer the
time that the conduct persists, the harsher the award that may be justified.
● Refer to All Lecture Notes for list of factors that influence the amount of the award
What do these cases tell us?
● Courts are willing to find bad faith and award punitive damages where warranted despite
Fidler
● There is an ongoing need for deterrence in insurance cases
● Part of the responsibility in deterring insurers from bad faith rests with plaintiff’s counsel
and their willingness to hold insurers accountable by pursuing justifiable punitive damages
claims at trial
● Bad faith allegations should not be made lightly and require evidence of conduct
● Insurers should avoid an overly skeptic approach to disability claims – avoid perceived BF
conduct
● Pay attention to insurer conduct in handling an injury or disability claim

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