Law of Torts - I

Canadian Tort Law

Submitted by Supervised by

Aman Gupta Dr. Sushila

7LLB15

National Law University

Delhi (India)
2015

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 Declaration
I hereby declare that the work reported in this project report entitled "Canadian Tort Law"
submitted at National Law University, Delhi is an outcome of my work carried out under
the supervision of Dr. Sushila. I have duly acknowledged all the sources from which the
ideas and extracts have been taken. To the best of my understanding, the project is free from
any plagiarism issue.

Aman Gupta

National Law University, Delhi

30th September 2015

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 Table of Contents

TITLE Page Nos.

Declaration by the Candidate 1
List of Acronyms & Abbreviations 3
List of Cases 4
Introduction 5

CHAPTER 1: The Tort Law in Canada 6

1.1 Intentional Torts

1.1.1 Trespass
1.1.1.1 Assault and Battery
1.2 Unintentional torts
1.2.1 Negligence
CHAPTER 2: Emergence or recent developments of New Torts in Canada 8

CHAPTER 3: Comparison of Tort Law of Canada with India 10

3.1 Assault and Battery
3.2 Consent
3.3 Negligence

Conclusion 11

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List of Acronyms or Abbreviations

ABBREVIATION EXPLANATION
AIR All India Reporter
Anr Another

CAN Canada

D.L.R. Dominion Law Reports

Edn Edition
EWHC High Court of Justice of England
Hon’ble Honourable

KB King’s Bench

No. Number

ONCA Ontario Canada

Ors Others

Para Paragraph
SCR Supreme Court Reports

SC Supreme Court
SCC Supreme Court Cases

V Versus

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List of Cases

1. Arndt c. Smith [1997]2 R.C.S. 539.

2. Childs v. Desormeaux 2006 SCC 18.
3. Cooper v. Hobart 2001 SCC 79.

4. Donoghue V/s. Stevenson [1932] A.C.562.

5. Hollis v. Dow Corning [1995]4 S.C.R. 634.
6. Hopp v. Lepp [1980] 2 S.C.R. 192.
7. Jacob Mathew v. State of Punjab & Anr, (2005)6 SCC 1.
8. Jones v, Tsige 2012 ONCA 32.
9. Jordan House Hotel Ltd. v. Menow 38 D.L.R.3d 105 (Sup. Ct. 1973).
10. Kamloops (City) v. Nielson [1984] 2.S.C.R.2.
11. Kennedy v. Hanes [1941] S.C.R. 384

12. Northern Pacific Railway v. Adams 192 CAN 440 (24 S.Ct. 408, 48 L.Ed. 513).
13. Osborn v. Veirch [1930] 2 K.B. 226
14. Ryan v. Victoria (City) [1991]1 S.C.R. 201.
15. Tuberville v. Savage [1669] EWHC KB J25.

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 Introduction

Tort law is evolving from ancient period and till now there is enormous scope for its
evolution. As India is one of the largest democracy so, there is need to study the law prevail
in India and to figure out the less developed laws and try to make them suitable to match the
needs of people, this can be done by comparing India’s law with some foreign country’s law.
Therefore, author is studying India’s Tort law in the light of Canadian Tort Law as it helps to
mark out the merits and demerits of both legal systems.

So, let’s know something about Canada.

Canada is demarcated into ten provinces and three territories out them only one province,
Quebec follows Civilian Culture, rest follows Common Culture as of India but their laws is
different from India might because of different conditions prevail in Canada. 1 Now, a
question arises as why Canada has two separate cultures and not one?

In medieval period, Quebec was the colony of France and therefore they follow French legal
system therefore, Quebec follow Civilian system and rest of the Canada is under the
influence of British supremacy so, they adopted Common law system. 2 Civil Code of Quebec
or Civil Code of Lower Canada (as Quebec is in lower part of Canada) came into force
in1866 which is based on French Civil Code of 1804, as it might be the only way to preserve
the French culture in Quebec.3

The report aims to answer the broad question of the comparison between the various torts
which are in effect in India, Common Law Canada and Civil code of Quebec and in the light
of this discussion author wants to define the nature of duty of care in the tort law of Canada
and finally the what are the new emerging torts in Canada that evolve over a decade.

This report aims to analyse the tort law in Canada i.e. tort law in Quebec plus tort law in rest
of Canada and what are their uniqueness. The comparative study between the Tort law of
India, Tort Law of Common Law Canada and lastly Tort law of Quebec this is to find out the
merits and demerits of the law of both the countries and how can we utilise this for our
benefit i.e. to make the root of tort law stronger in India. And finally, the developments the
existing tort undertaken and the new torts emerge in the last few years and whether they
change the earlier existing laws or draft a new element without eliminating others.
1
JEAN LOUIS BAUDOUIN. ALLEN M. LINDEN, TORT LAW IN CANADA 114(2nd ed. 2010).
2
Ibid.
3
Ibid.

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 Chapter – 1

Tort Law In Canada

Intentional Torts

Intentional torts as the word suggest means that a wrong require intention. Now, we can
define intentional torts as the wrong done by a person to plaintiff involve elements of
intention such as trespass, assault, battery, false imprisonment, nuisance, fraud etc. Now a
question arises that when some tort committed intention is never a factor to decide on a case,
same is here as court doesn’t look after the intention factor this is only to differentiate
between intentional and unintentional torts.

Trespass (Assault, battery and false imprisonment)

Trespass is an actionable tort without a proof, through a direct interference upon a person or
property (chattel or land). Compensation must have arises even after the no liability insurance
i.e. defendant must pay out of his pocket and this also create an accountability for wrong
done and act as a deterrence. 4 The Supreme court dissents that trespass is both criminal as
well as civil law and it merely means invasion over other’s property i.e. person, chattel or
land5 . Trespass to a person can be classified into assault, battery and false imprisonment.
Author is explaining tort of assault and battery only.

Assault and Battery

An assault is intentionally attempting or threatening to a corporeal hurt or causing reasonable

apprehension to immediate hurt to another person.6 But if it involves actual body contact,
assault converts into battery which can be defined as application of physical force
intentionally and directly i.e. touching in rude, anger etc as it involves intent therefore, assault
is an intentional tort. But intention can be from the consequence of the conduct. 7 The defence
of battery is consent from the plaintiff. As contact is essential element of battery, in Canada
there is no need to prove consent to contact by the plaintiff but in India the plaintiff need to
prove lack of consent. Merely words do not amount to assault unless that appears threatening

4
RATANLAL AND DHIRAJLAL, THE LAW OF TORTS pp. 245(26th ed. 2015).
5
Harrison v Carswell, [1976]2 S.C.R. 200.
6
Ibid 246.
7
ibid 247.

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to the plaintiff and the element of imminence is absent. When a person points a gun and says
‘Your money or your life’ then this is not assault as plaintiff can avoid harm by giving him
money and also there is no immediacy.8 Reasonable apprehension of immediate hurt is
sufficient not necessary real hurt. As in the case of Kennedy v. Hanes when a person pointed
an unloaded gun at the plaintiff who he not knows that it is unloaded has some apprehension
of immediate hurt therefore, it is an assault. 9 Hence, law of assault helps in mental security as
there can be no assault if a person points a revolver on a sleeping person so, it is not assault
as plaintiff has no apprehension of immediate hurt.

In Quebec, there is no such differentiation related to the tort of assault and they follow the
same rule which prevails in rest of Canada but there are some cases such as Amir Sám
Nakhjavani sues Mr. Parham Changizi, where plaintiff got compensation in tort as well as
justice under criminal law for assault done by defendant to him.

Unintentional Tort

Negligence

The Tort of negligence in Canada is developed through the landmark judgement in the history
of tort law of England i.e. Donoghue V/s. Stevenson which define principle of standard of
duty of care that a person owes to his neighbour i.e. someone can affect by your act or
omission.10

The definition of tort of negligence in Canada can be constituted from the following four
elements by a 1904 case Northern Pacific Railway v. Adams11, they are

There is duty of care towards plaintiff on behalf of the defendant and that duty is breached
and in consequence the harm suffered and this depend on remoteness of breach of duty and
whether it is proximate cause or not.

Standard of Duty of Care

8
PROSSER & KEETON, THE LAW OF TORTS pp. 45(5th ed. 1984).
9
[1941] S.C.R. 384.
10
[1932]A.C.562.
11
192 CAN 440 (24 S.Ct. 408, 48 L.Ed. 513).

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Earlier in Canada, to find out the duty of care the Kamloops test (in place of Anns test) is
followed which is based on the case of Kamloops (City) v. Nielson12 in which principle of
finding a duty of care when previously no authority is defined is laid down which later
change to Cooper’s or Anns test in Cooper v. Hobart13 i.e. they consider factual closeness and
various factors such as social, physical and assumption of credence, duty etc. In this case the
principles of Anns test is redefined as distinction between proximity and reasonable
foreseeability and the result came out is Cooper’s test. It laid down two stages one is Prima
Facie duty which contains that harm suffered can be reasonably foreseeable and it is fair or
reasonable to impose duty on the basis of closeness of parties. 14 Second stage is to find out
whether there is law which restrict or limit liability.15

Now, author is illustrating various arenas in which one can consider duty of care.

First, the duty of host to take care of the guests invited in the social party which based on the
landmark case of Childs v. Desormeaux16 in which principle derived is there is no liability of
a social host on behalf of his intoxicated guests if one of the guest is injured by act of other
and even when third party got injured by the acts of the guests then also host is not liable.

Second, there is liability of the manufactures to warn customers the merits and demerits of
their product which stated in Hollis v. Dow Corning17 and especially high duty to warn in
medical product.

Now, author wants to draw attention towards the law prevailing in Quebec which follows
Civilian culture. In regard to negligence, it looks more into the duty of care and
causation.18Moreover, it is much analogous to the common law of Canada that can be
elucidated by Ryan v. Victoria (City) in which the law of common law Canada is binding on
the railway corporations.19 Also in the case of Arndt c. Smith the principle is followed
regarding medical malpractices.20

Defamation

12
[1984] 2.S.C.R.2.
13
2001 SCC 79.
14
Ibid.
15
Ibid.
16
2006 SCC 18.
17
[1995]4 S.C.R. 634.
18
< http://www.justice.gc.ca/eng/rp-pr/csj-sjc/harmonization/hfl-hlf/b3-f3/bf3f.html>
19
[1991]1 S.C.R. 201.
20
[1997]2 R.C.S. 539.

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In Canada, tort of defamation is considered as one of the most essential tort as people of
Canada are fussier regarding their reputation and they don’t want to hinder their reputation
and for this they can even give their freedom of speech or expression.21

Elements of Defamation

First element of defamation is

Chapter - 2

Emergence or recent developments of New Torts in Canada

In the past few years, tort law validated developments which were once considered as the
most difficult areas in torts such as statutory duty. Along with this almost every area of tort
witnessed some development and the emergence of these developments is the result of
academic works.22 Moreover a new tort named ‘intrusion upon seclusion’ has emerged in the
arena of tort in Canada which is related to the invasion of piracy which developed by Jones v,
Tsige23 in which defendant accessed plaintiff’s personal account but as there is no law related
to piracy in Canada (Ontario) so, this created need to formulate a new law and open
floodgates to various new cases. But court has instituted several restrictions on the
application of this tort such as the defendant is liable only when he/she intentionally
encroaches upon the privacy of the plaintiff without lawful justification and the encroachment
is highly offensive causing humiliation and distress. 24 Therefore, this law face criticism
regarding case is instituted only when the intrusion is highly offensive. 25 The gravity of
intrusion is subjective topic depends on the individual discretion as some matter is serious to
one but not to other. One of the major flaws of this new tort is that it sets up limit of
compensation to $20,000 which is relatively low sum when huge corporations are involved
which are alleged for thousands, millions.26

21
LEWIS N. KLAR, RECENT DEVELOPMENT IN CANADIAN LAW, pp. 402,17 Ottawa L. Rev. 325 (1985).
22
LEWIS N. KLAR, RECENT DEVELOPMENT IN CANADIAN LAW, pp. 329,17 Ottawa L. Rev. 325 (1985).
23
2012 ONCA 32.
24
Heather Gardiner, New tort of ‘intrusion upon seclusion’, (28th Sept. 2015 9:15 P.M.)<
http://www.canadianlawyermag.com/legalfeeds/662/welcome-to-the-new-tort-of-intrusion-upon-
seclusion.html>.
25
Ibid.
26
Ibid.

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Considering the developments in various existing torts, firstly look at the developments in
negligence, it allows a bystander to recover damages for nervous shock who witnessed a
gruesome accident from the defendant.27 To expand the tort in commercial aspect, people are
accountable if they gave someone wrong or misleading advice. 28 This development restricts
people in commerce related field to give misleading advices to gain more profits and exploit
common man who works day and night to earn livelihood.

In case of Conversion or Detinue, the court evolved a new principle where if a good is stolen
and then price rises or falls, so the issue is whether conversion is applied which gives plaintiff
the value of goods on the date of judgement if price risen or whether detinue which gives
plaintiff the value of goods on the date of conversion if price falls. So, it is decided that the
rise in value or drop in value is both borne by the defendant.29

Chapter - 3

Comparison of Tort Law of Canada with India

Assault and Battery

In Assault and Battery, tort law of Canada and India is almost similar as there are cases when
court gave same decisions by following same principles for e.g. in the case of Tuberville v.
Savage30 principle of imminence derived. As the case of Kennedy v. Hanes in Canada there is
similar case of U.K., Osborn v. Veirch on which Indian principle of tort based.

Now, look at defences to the tort of battery in India, defendant need to disapprove the fault
that he is not negligent and has no intention in his conduct but in Canada there is no need of
plaintiff to prove that he/she has at fault. 31 Consent, infancy, mental disability and self

27
Lewis N. Klar, Torts, (28th Sept. 2015 9:15 P.M.)
< http://www.thecanadianencyclopedia.ca/en/article/torts/>.
28
Ibid.
29
LEWIS N. KLAR, RECENT DEVELOPMENT IN CANADIAN LAW,pp. 338-341, 17 Ottawa L. Rev. 325 (1985).

30
[1669] EWHC KB J25.
31
(28th Sept. 2015 9:00 P.M.)
< http://www.duhaime.org/LegalResources/TortPersonalInjury/LawArticle-194/Intentional-Torts.aspx>.

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defence but mistake is not a defence in Canadian tort law even in the case of unavoidable
mistake but in India unavoidable mistake can be used as a defence from incurring liability. 32

Consent

Canada and Quebec follow the principle of informed consent which is developed in the case
of Hopp v. Lepp as doctor has to take consent from every patient before his/her treatment and
if doctor failed to do that than he/she is liable even if doctor acted in good faith of the
patient33 but in Indian tort law principle of real consent is applicable which means doctor can
act without the consent of patient if he/she acted in good faith.34

Negligence

In this author differentiate tort law in Canada and in India on the basis of Duty of Care and
reasonable forseeability.

On the basis of duty of care, Canada provide a more stricter rule than in India as according to
Jordan House Hotel Ltd. v. Menow35 the bar owners need not only to care of their of their
intoxicated passenger in their hotel premises but also in the way to their residents and if they
fail to take care of customers than they are liable for breach of duty but in India the law is not
so strict as hotel owners are not subject to such care and need only to take reasonable care.

And in respect to reasonable foreseeability, judges of Supreme Court of Canada set a

principle in the light of transferred intent that on intentional torts the foreseeability rule of
negligence is not applicable.

In Common law there is no obligation to save a person who is in danger but only owes a duty
but in civilian system such as Quebec, there is obligation to save people by legislation. 36 For
e.g. if someone is drowning than they have to save him otherwise they are liable under tort
and similar in case of a road accident but in common law people not owes any obligation to
the person in danger.37 Even, if someone tries to help the person in danger and screw up the
matter more than he/she is liable under tort. 38 From researcher point of view, this law has
both merits and demerits i.e. such laws creates pressure on people to help others but at the
32
Ibid.
33
[1980] 2 S.C.R. 192.
34
Jacob Mathew v. State of Punjab & Anr, (2005)6 SCC 1.
35
38 D.L.R.3d 105 (Sup. Ct. 1973).
36
JEAN LOUIS BAUDOUIN. ALLEN M. LINDEN, TORT LAW IN CANADA 114(2nd ed. 2010).
37
Ibid.
38
Ibid.

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same time such laws are erroneous as they punishes those people who tries to help the person
in danger so, with this it put off the merit of the law.

Conclusion

Tort law has been given a less importance than other laws prevailing under Indian legal
system which adopted many principles from England. But this was not the case in country
like Canada as there are cases in which new principles are evolved although there is great
influence of American tort law. This can be due the fact that in India people are ignorant
about such laws; people are irresponsible and also India known for its unity and fraternity.

The report focuses on various types of torts that constituted Canadian tort law and then
compare them with those laws exercised in India and made a brief study of the similarities
and point of contraction between both the laws and also mentions some point of contraction
with Quebec civil law.

With this regard author mentions about the tort of assault and battery, that torts in both the
country is almost similar in its applicability but only contraction lies in defence of battery as
in Canada the law doesn’t even give concession on the unavoidable mistake but for India this
is not true. As per author’s opinion this a very strict law as this can’t be controlled by a
reasonable man as this mistakes are going to be happen and one can’t control but it can only
be minimised as much as possible.

In respect to the duty of care Canadian law imposes more duty of care towards defendants
than law imposes in India. They impose very high duty of care to the defendant towards
plaintiff .

On the basis of consent, laws of both countries are different as it is necessary to get consent
of the plaintiff even if acted in good faith but in India, law relieves the defendant if he/she
acted in good faith. From author’s point of view India’s law absolutely perfect as even if
good faith to save the life of patient (in doctor’s case), doctor need to take consent and what
happens when patient dies. Hence there is need to formulate the law in Canada as it is very
harsh.

Now look at the final aspect of comparison between India and Civil law of Quebec as regards
to rescue cases as in Quebec it is obligation on behalf of a person to save someone who is in
danger but only it is a duty in India. From researcher point of view, this law has both merits

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and demerits i.e. such laws creates pressure on people to help others but at the same time
such laws are erroneous as they punishes those people who tries to help the person in danger
so, with this it put off the merit of the law.

Further author looked at the emergence of new torts or developments in the existing torts in
Canada and found that a new tort of ‘intrusion upon seclusion’ evolved in Canada which is
related to the privacy and moreover the new principles developed in existing torts such as
nervous shock to third party in negligence cases and finally in the tort of conversion and
detinue.

In the end, apart from similarity – dissimilarity; merits and demerits; strict and mild, this
distinction can be proved useful to both the countries considering the applicability of law and
can learn from the each other as to what are the necessary changes they can made to the law
in their country and make more better law which can satisfy the need of the people and never
force people to follow in fear of punishment.

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