TORTS: WINTER 2020 OUTLINE

DYLAN BELL

Defining Tort3

Objectives of Tort Law3

Linden, "The Functions of Tort Law"3

Solomon, "The Rights Theory of Tort Law"4

Solomon, “The Basic Concepts of Remedies in Intentional Torts”4

Linden, “Damages”4

Contextualizing Tort Law5

Adjin-Tettey, “Righting Past Wrongs Through Contextualization”5

Mahoney, “Indigenous Legal Principles Informing the Largest Settlement”7

Blackwater v Plint, 1998 BCSC10

Blackwater v Plint, 2005 SCC10

Duty of Care11

Linden, "Duty"12

Donoghue v Stevenson, 1932 UK HL12

Cooper v Hobart, 2001 SCC13

Blom, “Do We Really Need the Anns Test For DoC?”14

Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC15

Brown v Canada AG, ONCJ 201716

Rankin v JJ, 2018 SCC17

Jordan House v Menow, 1974 SCC18

Stewart v Pettie, 1995 SCC19

Childs v Desormeaux, 2006 SCC20

Standard of Care21

Solomon, "The Standard of Care"21

Arland v Taylor, 1955 ONCA22

Ryan v Victoria, 1999 SCC22

Bolton v Stone, 1951 UKHL22

Perilli v Marlow, 2018 BCSC22

Stewart v Pettie, 1995 SCC (revisited)23

Hill v Hamilton-Wentworth, 2007 SCC (revisited)23

Peters v Peel School District, 2016 ONSC24

Problematizing the Standard of Care25

Friedland, “Navigating through Narratives of Despair”25

Moran, “Common Sense Ideas of the Normal and Reasonable Person”26

Causation27

Kauffman v TTC, 1959 ONCA28

Barnett v Chelsea & Kensington Hospital Management Committee, 1969 UKQB29

Aristorenas v Comcare Health Services, 2006 ONCA29

Athey v Leonati, 1996 SCC29

Resurfice Corp v Hanke, 2007 SCC30

"Scientific and Legal Approaches to Causation," Stapleton31

Snell v Farrell, 1990 SCC31

Benhaim v St Germain, 2016 SCC32

Clements v Clements, SCC33

Fairchild v Glenhaven Funeral Services, 2002 UKHL34

Sindell v Abbott Laboratories:35

Remoteness35

Chinsang v Bridson, 2008 ONSC35

Mustapha v Culligan of Canada Limited, 2008 SCC36

Price v Milawski, 1977 ONCA37

Saadati v Moorhead, 2017 SCC37

Lim, "Thin Skull Plaintiffs"38

Contributory Negligence40

Solomon, "Defences in Negligence"40

Walls v Mussens Ltd, 1969 NBCA41

Gagnon v Beaulieu, 1977 BCSC41

Wormald v Chiarot, 2016 BCCA42

Damages42

Mayne v Mayne, 2013 BCSC42

Andrews v Grand & Toy Alberta Ltd, 1978 SCC47

Mor, "The Meaning of Injury"48

Negligence & Global Supply Chains49

Das v George Weston Ltd, 2018 ONCA49

Doorey, "Lost in Translation"53

Intentional Infliction of Nervous Shock53

Slade, "IIMS: Reconsidering the Test for Liability"53

Boucher v Walmart Canada Corp, 2014 ONCA55

Harassment56

Mainland Sawmills Ltd et al v IWA-Canada et all, 2006 BCSC57

Merrifield v Canada (AG), 2019 ONCA 20557

Nuisance and Protecting Aboriginal Lands61

Saik'uz First Nation and Stellat'en First Nation v Rio Tinto Alcan Inc, 2015 BCCA61

Defining Tort

Obligations are imposed by law on the basis of circumstance; encompasses infringements on those obligations that doesn't fall neatly into the catchment area of contract, criminal or other areas of law. Specifically interested in restorative compensation between private individuals; not in the theoretical outcomes that could have happened had the incident not happened. No agreement necessary to take tort action in tort; unspoken (or explicit) rules that govern societal norms -- neighbour principle.

Non-consensual; extra-contractual; imposed, non-voluntarily

Constellation of claims

Secondary obligations; law is honoured in the breach of it

Somebody has to be at fault; this is where insurance comes in to play -- to fill that gap

Demonstrable loss; have to have suffered an actual injury, or economic damage

Actionable per se: i.e. battery - interference with someone's safety is so prohibited that even if there is no damage

Technically defamation is also a strict liability tort; predicated on protecting an individual's reputation and presentation in society. You can't put genie back in the bottle, so to speak, so the requirement for liability is higher.

Tort law is concerned with the breach of obligations. It is concerned with private law and private wrongs. For example, unjust enrichment applies if, in the absence of juristic reason, defendant receives a benefit from the plaintiff.

Plaintiffs are entitled to sue for several causes of action. However, if successful on more than one basis, they have to elect one and cannot enjoy double recovery for the same loss

Obligations in tort are imposed by law on the basis of circumstance

i.e. motorist has a duty of care to a pedestrian, even if they did not agree to/were aware of it

Privity does not apply to tort as it does to contracts; tort action can be taken against total strangers

Compensation in tort looks backward. It awards based on what was lost at the time

Contracts look forward to what the claimant expected to receive

Objectives of Tort Law

Linden, "The Functions of Tort Law"

Compensation: traditionally seen as the most important aspect of tort law; comes to what the courts see as falls below acceptable standards. Private claims that allow private individuals can use. Serves as a proxy for the goal of restoring the plaintiff's position was in prior to the losses occurring.

Uses damages as remedies

Focusses on fault; indemnity based on the losses suffered by the defendant's fault-based actions

Critiques: inconsistent, unpredictable and comes at a high cost

Deterrence: one function is to express society's disapproval of certain kinds of conduct. Acts as a disincentive to risk-creating behaviour. "Regulate behaviour in a forward-looking behaviour."

Tort still lags behind the law of crime: punishment is not individualized (or refrained from altogether) but rather imposes an “arbitrary, mechanic forfeiture.”

Civil liability is thought to enforce reasonable standards of behaviour, but does it actually fulfil this purpose?

Market: Attempts to make more expensive activities which are accident prone and thereby make more attractive their safer substitutes.

i.e. manufacturer's liability; costs of making a faulty product and the financial and legal liability should be absorbed into the cost of making the product and spread across industry, that it provides specific economic incentive to do so in a non-faulty way

Corrective Justice and Education: seen as more normative objectives; reflects idea that tort law seeks to restore some sort of equilibrium between parties that were assumed to be on equal footing before the tortious conduct, and seeks to restore them through their equal places

Aims to correct the injustice that was done between the two parties

Critiques: formalistic interpretation; assuming parties are on equal footing is sometimes in particular can be incredibly unfair

Can tort law become less blind to the inequalities that parties enter on?

Tort law presumes neutrality, by failing to account for the actual status of the parties that come before the court, focuses its attention on certain "relevant facts"

Education serves to address how in industries wherein parties have higher power are not only deterred, but also explain why they are held to a higher societal standard

 

Solomon, "The Rights Theory of Tort Law"

A descriptive account; not concerned with objectives (i.e. harm or loss comes about as a result of tortious conduct), but rather protecting identified rights of others, describing the legal rights and impose the corresponding obligations.

Actionable per se: i.e. tort of battery, even if no harm happened, damages are available for the purpose of vindicating the plaintiffs primary right to security of their own person. Monetary relief acts as a substitute for that right. 

More concerned with wrongs, than harms or losses; not as focused on material implications

Solomon, “The Basic Concepts of Remedies in Intentional Torts”

Two broad categories of remedies: judicial and extrajudicial. Of the former:

Award of damages: available across a range of actions, gives the plaintiff a "legal right" to a specific sum

Injunction: order that directs a party to do or refrain from doing certain things, often used as interim orders while case continues

Mandatory: compels ∆ to do something i.e. tear down a billboard

Prohibitive: forbids ∆ from doing something, i.e. INS v AP

Ignoring an injunction can lead to contempt of court and imprisonment

Historically only granted by courts of equity; only available if common law remedies were inadequate

Merging of courts there means equitable remedies are dependent on damages not doing enough

Declarations: formal statements of a court that are usually issued to resolve a dispute or an issue of legal rights

Order of specific restitution: directs a party to restore to pre-existing conditions or return an object; granted rarely

i.e. unjust enrichment in cases with cohabitation and one party putting much more into a house than the other and yet both getting the same amount

CCRF §24(1) adds another dimension by saying a person whose rights have been infringed can apply to a court to seek whatever remedy the court considers accurate.

Doesn't necessarily equal damages as that may not be appropriate

Also called "self-help" remedies, such as recapture of chattels, re-entry onto land and abatement of nuisance as they are sometimes applicable in a small number of cases

 

Linden, “Damages”

Simplest analysis is divide the plaintiff's claims into pecuniary and non-pecuniary losses.

Special damages are those that can be exactly quantified at the time of trial, i.e. expenses that have already taken place

General damages are those incapable of such quantification at the time, i.e. future anticipated costs like physiotherapy, therapy, retrofitting a house for a new handicap

Under the framework of intentional torts, they're classified according to purpose:

Nominal to redress the legal right infringement

Awarded in a small sum to redress the violation of a legal right that the law deems worthy of protection, even in the absence of actual harm

Traditional view holds only awarded for torts that are actionable per se

Compensatory to compensate the plaintiffs for losses; classify and quantify

Assessment standard set in Dodd Properties Ltd v Canterbury City Council, 1980, to place plaintiff in the position he would have occupied if he had not suffered the wrong complained of.

Pecuniary; can include (a) loss of coming potential; (b) future care costs; (c) costs that are "calculable but have happened yet"

Non-pecuniary: can include (a) pain and suffering; (b) loss of enjoyment and life;  (c) humiliation or loss of dignity; about measuring "immeasurable value"

Punitive to punish the ∆

Cannot be awarded when tortious acts are also crimes wherein the conduct has already been sanctioned -- double jeopardy rule. There is a specific focus on ∆ punishments.

Principles according to Binnie J in Whiten v Pilot, 2002:

Can be awarded in any type of case to punish the defendant, deter them, denounce their conduct or strip them of profits their conduct generated

Only very serious misconduct warrants punitive damages

Most likely awarded in intentional torts

Criminal punishment is not proclusionary

Should be awarded with restraint and only if others aren't satisfying

No fixed ratio b/w compensatory and punitive

Juries should be informed of functions and factors of them

Appellate courts can intervene if the punitive award is deemed to exceed

§24(1) allows courts a blank cheque essentially in relation to appropriateness

Disgorgement to recoup the gains the plaintiff got; gains-based, regardless of loss

Shifts the focus from the π's loss to the ∆'s gain, compelling the defendant to give up the benefits obtained from the tortious conduct

Edwards v Lee's Administrators, 1936, cave tour case wherein the π had suffered nothing from the underground tours by the ∆, but the court sought a "basis of recovery" on the "profits received, rather than the damages sustained.”

Contextualizing Tort Law

Adjin-Tettey, “Righting Past Wrongs Through Contextualization”

Application of seemingly "neutral principles" decontextualizes the claims, limits the scope of inquiry, and ultimately results in depressed damage awards for claimants.

Fundamental thesis: ways in which defendants and courts use limitation defence, establish the scope of inquiry, and construct plaintiff's "original position" in determining the consequences of actionable wrongs are problematic.

To be meaningful, tort system must be flexible and contextual, giving due consideration to the historical factors and processes that have produced many of these claims.

ADR process from 2003 let to the Agreement In Principle (AIP) that offers a more "encompassing and non-judicial process" for former IRS students. Some students preferred that as it allowed them to avoid litigation costs, delays and emotional difficulties in testifying with no guarantee of success.

Allows for tort claims where (a) claimant's actual losses exceed the limit; (b) where courts are deemed to be appropriate forum to deal with evidence necessary to substantiate allegations

Notes that courts tend to stick to formal equality in their treatment of claims and insisting on application to decontextualized tort claims; "results in injustice."

IRS Settlement Agreement

$10k for first year / $3k for every subsequent year

Sexual and physical abuses can lead to further assessments for damages through an adjudicator

Claimants could be entitled to future care costs including psychiatric treatment (u/t $15k) as well as consequential loss of opportunity or actual income loss (u/t $250k)

Acceptance of the CEP constitutes a release of the federal government and churches that ran the school from all further liability relating to the IRS experience except claims of sexual and physical abuse that will be addressed by the independent adjudicator

Bettering the AIP

The CEP clause constituting relinquishment for liability and ergo tort action

The limit on legal fees is a disincentive for claimants with pre-existing law suits who are otherwise eligible CEP recipients from participating in the agreement

Therapeutic jurisprudence

Challenge the legal system or law to go beyond the rhetoric of rights to ascertain the actual effects of laws and legal institutions on the lives of those affected (decolonizing; Indigenizing)

"Money is the way … the legal system compensates for injuries wrongfully caused by others … financial compensation is in some ways the most basic material need of survivors."

The restorative goal of tort damages intended to make the victim whole is consistent with the focus on beneficial outcomes in therapeutic jurisprudence

Low damages or feelings of unfairness "would likely be a disincentive to instituting claims"

Aboriginal π are often awarded lower compensation for impaired working capacity b/c their "material prospects are thought not to be promising even if they hadn't been injured."

Differ in that they are (a) not between strangers and (b) require more attention to broader issues of inequalities i.e. domination and oppression that led to the claim

Substantive equality

The state as a "private defendant" has a substantial amount of power and as these claims are being processed and adjudicated in a colonial legal system is just ignored (supposedly blind) in a decontextualized approach

Causation effect as problematic as it attempts to parse and categorize different kinds of experiences in relation to the IRS experience

Process of seeking redress and outcome should be an opportunity for healing and reconciliation

Many of these "neutral legal principles" have no bearing on the racist and assimilationist ideologies that underpinned the relationship between the ∆ and π.

Torts might be "the only viable avenue for redress for some victims, especially those not eligible under the ADR options."

∆ should ensure process of seeking redress does not further alienate π and exacerbate their vulnerability in Canadian society even more so

i.e. not insisting on formalistic constructions of plaintiffs' original position or negative contingency deductions

Public recognition of harm to survivors, in addition to monetary compensation, may be essential satisfy victims' quest for justice and encourage adoption of preventative measures

"Ultimately, the viability of tort system depends on ability of victims to feel that justice has been served in their case and that fair financial compensation has been recovered."

Brave for victims to expose themselves to the adversarial system i.e. discredited testimonies, reputational and credibility attacks by prosecution

Re-traumatization effect on survivors and the identification of legally-relevant facts as further damaging

Grandview Agreement Process: 88% reported satisfaction due to privacy, potential physical and psychological costs of civil litigation, delay with trial and ability to go through process as group

However some felt it was specifically designed to be a cost-effective way for the gov't to compensate survivors ; further the settlement was private and not disclosed

"It is not uncommon for parties providing compensation in non-court processes, who would have otherwise been ∆ in tort actions, only to accept moral responsibility and yet disclaim legal liability for the claim."

ADR settlements are also final outcome with no appeal options

In ADR, quantum of compensation is often determined by nature and frequency of abuse and not necessarily impact on victim

Specifically inconsistent with tort damages where focus is loss reasonably attributable to defendant's conduct

 

Mahoney, “Indigenous Legal Principles Informing the Largest Settlement”

Through applying principles of indigenous feminist theory, indigenous legal theory and indigenous legal traditions, negotiators were able to contemplate a wider range of harms, design a broader range of reparations, empower victims to articulate what they wanted, justify culturally unique reparations, and lay the groundwork for a better relationship with Canada – traditional legal methods couldn’t do this.

Reparations in International Law

Obligation to prove reparations for human right abuses has been recognized under international treaty and customary law, decisions of international bodies such as the UN Human Rights Committee and Inter-American Court of Human Rights, in national law and practices, and in municipal courts and tribunals

Violations against indigenous peoples through IRS are serious violations of international human rights law set out in a number of international conventions Canada has ratified

Include violations of civil and political rights

Right to non-discrimination

Right to life

Right of children to be free from sexual violation

Right not to be tortured or endure cruel, inhuman or degrading treatment

In principle, reparations in international law for mass human rights abuses are comprehensive, but the problem for victims is accessing these remedies in domestic proceedings

Another problem is the fundamental principle of international law that says in order to access remedies in international law, injured parties must first exhaust domestic remedies

Exhausting local remedies to highest level of court will be beyond financial reach of most disadvantaged groups seeking reparations for human rights abuses

Facts of residential school era do not support narrow definition of genocide in Canada – specific intent of the perpetrator to destroy group is not met – not genocide but implementation of a brutally enforced assimilation policy which happened to have genocidal effects

Term “cultural genocide” was removed from Genocide Convention after strong opposition from Western nations

Courts have refused when asked by claimants to make findings of genocide in residential school claims

International law does not provide clear path for victims

Reparations in Domestic Criminal Law

Domestic criminal law can address individual claims of sexual and physical abuse as well as kidnapping and torture but is not designed to provide reparations for victims

Provides very little (if any) satisfaction other than official recognition that a crime was committed

High burden of proof to secure conviction would make it very difficult to achieve redress through retribution especially when offences occurred decades ago

Crimes Against Humanity and War Crimes Act only applies if genocidal crime occurred after Rome Statute ’98 came into effect

Civil Litigation Reparations for Residential School Survivors: Theory and Practice

Clear that only remaining litigation path for victims is civil litigation

Problem with corrective justice theory in torts is that it is often not possible for wrongdoer to repair injury inflicted with money

Remedies can be incapable of comprehending or correcting relationship between oppressed and oppressors

Class action lawsuits are favoured avenue for lawyers seeking reparations from mass harms through law of torts

Remedial principle is same as in tort action – place victim in position they would have been in without the wrong

Class actions are useful, economical and fulfill goal of deterrence however victims have to deal with enormous legal hurdles often resulting in re-victimization and denial of their claims

Claimants have burden of proving wrongful acts

EFDs can cause cultural and personal humiliation and embarrassment

Significant delay often

Level of detail required to meet burden of proof often impossible to meet

Enforcing judgments could be futile b/c perpetrators were either dead or had insufficient assets to pay judgments and most victims chose to sue gov’t and churches under principle of vicarious liability but must show “strong connection” between employment and facilitation of abuse

Litigation crisis in 1990 when flood of litigation by former students began shortly after Phil Fontaine, Grand Chief of Assembly of Manitoba Chiefs became first aboriginal leader to speak out about abuses he and others had endured

Indigenous Legal and Theoretical Intervention

Assembly of First Nations (AFN) realized unless AFN was part of solution, historic opportunity to deal with residential school tragedy would be left solely to non-indigenous lawyers and judges working within a seriously limited and biased legal system

AFN issued comprehensive letter in response which analyzed and critiqued government’s approach – negotiations between gov’t and AFN culminated in political accord stating gov’t would involve AFN in approach to reconciliation settlement

AFN filed class action in the courts on behalf of survivors while also opening up channels of discussion at the political level – intention to use legal action to lever the parties into settlement negotiations favorable to and consistent with indigenous traditions

AFN claimed for damage to spiritual, linguistic, cultural and social harms, not just to living survivors but also deceased survivors, families of survivors, and all aboriginal peoples

Out of court settlement quickly became preferred option

Once formal settlement negotiations started, AFN took the lead – negotiating team was comprised of majority of indigenous representatives and non-traditional lawyers

Deeply embedded assumption that colonial law was and is superior to the pre-existing indigenous legal traditions is overwhelming perspective that lawyers trained in the British legal traditions accept

AFN signalled that indigenous legal principles would be centerpiece of negotiating strategy

Contrast between process adopted by other negotiating parties and the AFN was clear – AFN reached out to survivors, elders, community members and intergenerational survivors to ascertain what they wanted from the process and under what terms

AFN was also guided by a set of broad Indigenous values that emerged from the consultation process

Ultimate goal of AFN team’s strategy in the negotiations was for settlement agreement to encompass a wide range of reparations that would be transformative for people, relationships and communities

Fair and just compensation essential but other elements such as truth and reconciliation commission, healing funds, commemorative events, advance payments for the elderly, education fund for intergenerational survivors, and fund for loss of language, culture and family life just as important

Tort law uses device of foreseeability to limit tortfeasor’s liability to those whom the wrongdoer can foresee would be affected – in most cases, injuries to 3rd parties are considered to be too remote

In IRS tragedy, need for rehabilitation and healing went beyond survivors to their families and future generations

What is also missing in UN principles and tort law is purposeful and explicit reference to gender – Indigenous feminist theory helps fill this gap – gender must be a central consideration of ongoing work on Indigenous law

Power of Indigenous feminist theory forced AFN team to consider political and social conditions from a different perspective than the mainstream lawyers did and to articulate different solutions – informed reparations for compensation

In 6 months, comprehensive and holistic AIP was reached

The Settlement Agreement

In 2005, 105,000 survivors and their families settled their claims with the gov’t and various church entities in the largest and most holistic class action settlement agreement in Canadian history that is also unique to the world

Agreement was comprised of both individual and collective reparations

Compensation was only one part of much larger range of reparations

Compensation

Common Experience Payment (CEP)

All former residents of schools shared a fund of $1.9 billion for loss of language and culture and loss of family life

Educational Fund

Unspent balance of common experience fund of over $350 million was divided into two categories of education funding

First invited individual survivors to apply for $3000 worth of education credits that could be used at approved educational institute or program by survivors or their family

Second branch was educational trust fund for intergenerational survivors to support education programs aimed at healing, reconciliation and knowledge building

Individual Assessment Fund (IAP)

Fund for individual claims of sexual, physical, or psychological abuse is the largest fund in the settlement agreement – based on tort model but with exceptions reflective of indigenous legal principles and the guidance received from survivors during Dialogues and other meetings

Most important elements of settlement were beyond any court’s jurisdiction to award in a trial :

Tort remedies on their own are insufficient

Without Indigenous principles forming the foundation of the IRSSA there would have been no relaxation of proof and limitation requirements, no adjudicated hearings, no healing funds, no TRC, no calls to action, no payment for loss of language and culture and loss of family life, no advance payment for the elderly, no reparations to commemorate deceased survivors, no intergenerational reparations for education and community development, no research centre, and no public apologies from Canada or the churches

Coming to terms with limitations of traditional forms of law and legal remedies is upon us

IRSSA should stand as an example for the future.*

 

Blackwater v Plint, 1998 BCSC

F: π sought damages for sexual assaults committed by the ∆ while they were students or residents at Alberni Indian Residential School. I: Are the ∆ HM Queen and/or United Church of Canada vicariously liable for the sexual assaults committed by the ∆ Plint against the π while they were students at the AIRS?L: In a joint venture-type partnership as the IRS system was, both Canada and the Crown can held vicariously liable as employers.A: (Brenner J) π argue that both Church and Crown are vicariously liable for the breaches of fiduciary duty and duty of care. Crown argues that the Church is solely vicariously liable; Church says Crown directed and controlled all operations of AIRS.

Needs to be a "conferral of authority" wherein the conduct constitutes a wrongful and unauthorized mode of doing some act

Needs to be a "close connection between the employee's authorized duties and his wrongful acts."

Both tests are satisfied as ∆ had the authority of a parent conferred upon him by his employer and assaulted the children in either his office or bedroom at AIRS; a close connection, thereby the employer is vicariously liable, but who is the employer?

Crown did not effectively transfer all aspects of operation of AIRS to the Church under the agreements and the practice both parties followed. It issued many instructions regarding the operation, but was not the sole controlling entity of AIRS.

Church provided Christian education and it communicated frequently with the principal and ran, in the ordinary sense, a joint enterprise or partnership with the Crown

Vicarious liability: imposed by the law upon a person as a result of a tortious act or omission by another; some relationship b/w the actual tortfeasor and ∆ whom it is sought to make liable; and some connection between the tortious act and that relationship. In modern law, only three relationships which satisfy this:

Master and servant;

Principal and agent;

Employer and independent contractor

In this case, "Crown exercised the degree of control over the principal and the activities at AIRS necessary to support a finding of vicarious liability in law."

"Here, Canada is being taken to task for not only its policy of having IRS such as AIRS but also the steps that it took or failed to take to execute that policy."

But further, the arrangement at AIRS also "served to advance the interests of the Church," and as such, the Church had "sufficient joint control and a cooperative advancement of respective interests" in so far as to characterize it as a joint venture.

*Coincides with the language used by the parties themselves to describe their relationship.

C: Finding of vicariously liability for sexual assaults committed against π by Plint for both the Church and Canada. 75% liability for Canada; 25% for the Church, $125k general damages and $20k aggravated damages to B against the Church and Canada. Further $40k punitive and counselling fee of $5k.

 

Blackwater v Plint, 2005 SCC

F: Following the prior case, the Church appealed to the BCCA, wherein the doctrine of charitable immunity was applied to exempt the Church from liability and placed it all on Canada, along with an extra $20k for loss of future earning opportunity. Canada applied for appeal to re-include the Church in the proportional damages awarding.I: Does the doctrine of CI apply? In other words, is the Church still vicariously liable with Canada for the wrongful acts of the ∆?L: Charitable immunity: in effect, the BCCA created a "limited status-based exemption from liability for non-profit organizations…. Mere sympathy does not permit courts to grant exemptions from liability imposed by settled legal principle."

A: (McLachlin CJ) CA erred in exempting the Church from liability on the grounds of charitable immunity, and the trial judge erred in finding a non-delegable statutory duty to ensure the safety and welfare of the students at the school in §113 and §114 Indian Act.

Language of the provisions uses permissive term "may" as opposed to directive term "shall", limiting the possibility of finding an obligation as strong as a duty

Further, it suggests that the duty is eminently delegable and was contracted out by gov't

Vicarious liability may be imposed where there is a significant connection b/w the conduct authorized by the employer or controlling agent and the wrong. Having created the risk of the wrongful conduct, it is appropriate that the employer be held responsible, even though the wrongful act may be contrary to its desires.

"The incontrovertible reality is that the Church played a significant role in the running of the school. It hired, fired and supervised the employees… for the gov't of Canada, but also for its own end of promoting Christian education to Aboriginal children."

While VL is a no-fault offence in the sense that the employer need not have participated in the or even authorized the employee's particular act of wrongdoing, in another sense it implies fault.

Fiduciary duty is a trust-like duty, involving duties of loyalty and an obligation to act in a disinterested manner that puts the recipient's interest ahead of all other interests.

Damages: "It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort."

The rules of causation consider generally whether "but for" the ∆'s acts, the π's damages would have been incurred on a BoP… so long as the ∆'s act is a cause of the π's damage, the ∆ is fully liable for that damage.

The amount of damages is limited by loss caused by the actionable torts, in this case sexual assault. Not awarding damages for loss caused by other factors does not "reduce" damages.

Punitive damages are awarded against a ∆ only in exceptional circumstances for "high-hanged, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour."

C: Appeal dismissed; Crown appeal allowed in part. Trial judgment restored on the issues of joint vicarious liability and assessment and apportionment of damages. BCCA CI set aside.

Duty of Care

Solomon, "Introduction to the Law of Negligence"

There are two ways negligence is invoked in tort law:

Broader sense as it refers to a cause of action that constitutes a branch of tort law concerned with liability for careless conduct

Narrower sense for one particular element within that cause of action, namely, whether the ∆'s conduct met the standard of care required

Recommended to use carelessness when referring to specific instances of a conduct

Attributes liability for careless conduct; highly contextual and fact-specific

The threshold issue in every negligence case is whether the ∆ was subject to a legal obligation, or "duty" to exercise care with respect to the π's interests.

Canadian judges have tended to work from an expansive, π-friendly perspective, but there has been a shift toward a more conservative attitude in the new millennium.

Breadth and flexibility of the CoA makes it the most frequently litigated tort.

Borne out of the tort of trespass vi et armis, wherein the π was required to prove that they had suffered actual loss and that the ∆'s conduct was either intentional or negligent in contributing to it.

Trespass on the case is the predecessor to negligence cases. It was often referenced to individuals in "public callings" i.e. apothecaries, surgeons, innkeepers for breach of customary standards of practice

Negligence claims can be divided into six parts, wherein the π has burden to prove first five, and ∆ has burden to prove the sixth:

Duty of care: Courts must decide whether ∆ was under any legal obligation to exercise care with respect to the π's interests, and potentially the nature and scope of that obligation.

Relationship between the parties

Prima facie DOC: Donoghue neighbour principle

Standard of care and its breach: ∆ is expected to meet the reasonable person test in the circumstances, but some professionals have a higher standard of care, and then that is applied to their conduct to determine whether they breached it.

The conduct required by ∆ to satisfy the duty

What did the ∆ have to do, and did they not give sufficient care or attention to their conduct to warrant a breach of their SOC?

If they are found liable of a DOC and a breach of the SOC, ∆ is negligent, the next three elements are used for establishing the relationship between the parties

Causation: Only liable if the breach of care was a cause of the π loss.

Did ∆'s breach factually cause π's injuries?

Factual inquiry; "but for" test

Remoteness of damages: Determine whether the relationship b/w breach and injury is too tenuous to warrant recovery.

In intentional torts, ∆ are liable for all consequences of their wrongful conduct.

In negligence, liability is limited to those losses that were foreseeable consequences

Were the injuries reasonably foreseeable?

Actual loss: Not actionable per se. π must establish they suffered legally-recognized injuries and losses and their nature and extent.

Not enough to have experienced a violation of their personal integrity in the way some intentional torts are; requires actual, provable loss

Π's injuries or material losses

Defences: Once the π has established a prima facie claim, court addresses issues of defences. Π damages can be reduced or eliminated by their own conduct (contributory negligence, voluntary assumption of risk or illegality), or on account of other considerations (inevitable accident). The ∆ can also raise general defences, i.e. lapse of limitation period.

 

Linden, "Duty"

Courts use the duty concept as a limiting device to deny or restrict liability, even when the ∆'s negligence may have caused a loss. Duty issues do not arise in most tort cases (esp. those involving personal injury) as it has long been established that a motorist owes a duty to those on the road, a doctor owes a duty to patients and a manufacturer owes a duty to consumers.

Only when a novel duty is freshly asserted that a consideration is needed

Donoghue's neighbour principle was used until 2001 when Cooper v Hobart, 2001 SCC introduced a more complex analysis that has expanded the definition of duty.

 

Donoghue v Stevenson, 1932 UK HL

F: π sought to recover from the ∆ £500 on the grounds of negligence for damages from the injurious effects producer on her by the presence of a snail in a bottle of ginger beer manufactured by the ∆ and ordered for the π in a shop. I: Is the manufacturer sold to a distributor which prevent the distributor from inspecting it (dark bottle) under any legal duty to the ultimate purchaser to take reasonable care that it is free from defect likely to cause injury to health?L: (Atkin L) "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Neighbours are defined in law as "person who are so closely and directly affected by an act that one must ought reasonably to have the in contemplation as being so affected when I am directing my mind to the acts or omissions in question.

Based upon a general public sentiment of moral wrongdoing for which the offender must pay

(Macmillan L) We make many daily contacts with others in our day-to-day life, therefore the only standard the law can infer is the reasonable person one with regards to duties of care between those who stand in relationship to one another.

Cardinal principle of liability is that the party complained of should owe a duty to other party and latter should be able to prove they suffered damages in consequence of breach of that duty.

However, foreseeability alone is not enough; there must also be a close and direct relationship of proximity.

C: Manufacturers owe the final consumer of their product a duty of care. Appeal from π allowed, ∆ found liable for damages.

 

Donoghue neighbour principle develops two key aspects of contemporary DoC test:

What are reasonably foreseeable injuries?

And who could I reasonably foresee as being injured my negligent conduct?

Misfeasance v non-feasance: negligent action is in the act v negligent act is in non-action

Breaking down DoC:

Is it already recognised? Builds on case law

Important to address the proximity

Is the proposed DoC analogous to a recognised duty?

Policy considerations do not necessarily need to be recognised yet

Should a new DoC recognised? Anns-Cooper test

Full-blown analysis of proximity and policy considerations

Cooper v Hobart, 2001 SCC

F: Registrar of Mortgage Brokers, a statutory regulator, suspended a registered broker's license and issued a freeze order on his assets because he was using them for unauthorized purposes. Π argued that the Registrar was aware of the violations of the BC Mortgage Brokers Act and should have acted earlier, thereby breaching the duty of care he owed to the π and other investors. Trial judge certified a negligence claim in a class action lawsuit, but the BCCA reversed it.I: Does the Registrar owe a duty of care to the π? Or is that solely left to the ∆?L: Refines the Anns test to determine the prima facie DoC through proximity.A: (McLachlin CJ and Major J) Cooper v Hobart acts as a "gloss" on Donoghue, which has already been glossed by Anns v Merton LBC, 1978 UK HL by Lord Wilberforce. The Anns test finds that a duty of care requires:

A finding of proximity based on foreseeability sufficient to create a prima facie DoC

Proximity: characterization of the type of relationship in which a DoC may arise; generally through categories, new ones can be created but old ones are generally ref'd

Defining this relationship can involve expectations, representations, reliance, and the property or other interests involved; factors that evaluate the relationship

When evaluating this, consider the expectations and interests of parties

Objective overlay when interpreting this, however when there are particular circumstances that support subjective applications

Two questions arise here:

Was the harm the reasonably foreseeable consequence of the ∆'s act?

Are there reasons n/ws proximity established, that liability should not be recog'd?

Consideration of whether there were any reasons that should negate that DoC

For example, legislature policy decisions are excluded from negligence liability, but only for operational decisions, because "it is inappropriate for courts to second-guess elected legislators on policy matters."

Operates to deny finding a DoC; what is the legal effect and implications of recognizing this new relationship as giving rise to legal obligations in negligence

Does the law already provide a remedy? Would recognizing a new DoC create specter of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest it shouldn't be recognized?

In this case, proximity from the Registrar to the π must be interpreted from the statute, his source of duties. The BC MBA does not impose a DoC from the Registrar to the investors, but rather to the public as a whole, which would be a conflict of interest; further the clients of the broker are too removed.

The π has burden of proof to establish the prima facie case. ∆ must establish the second stage.

"Even though to some degree the provisions serve to protect interests of investors, the overall scheme mandates their DoC is not owed to investors exclusively but to the public as a whole."

Imposing a prima facie DoC would come at the expense of other important interests, efficiency and the public confidence in the system as a whole

RE: policy considerations: because the Registrar makes quasi-judicial decisions and policy decisions of the government, and the Court owes them deference (but one step further, an immunity from private law DoCs that relates to a policy considerations as opposed to opportunity considerations).

C: BCCA decision affirmed, appeal dismissed.

 

Blom, “Do We Really Need the Anns Test For DoC?”

History of the test: It was applied in Kamloops v Nielsen, 1984 SCC, where the court found that a DoC was established in similar factual scenarios to the Anns case. It was departed from in 1990 by the UK HL in Murphy. When establishing new DoCs, UK now ask strictly: "whether damage to the π was a foreseeable result of the ∆'s negligence, and whether it is fair, just and reasonable to impose liability for that damage on the ∆." Further clarified in Cooper v Hobart:

(a) Was the harm in question reasonably foreseeable?

(b) Is there a sufficient degree of proximity between the π and ∆ to justify it?

Are there policy considerations that would negate finding a new duty?

Then CNR v Norsk, 1992 SCC was decided (after UK had repudiated Anns by then), but SCC kept it. They equated it with "preserving flexibility in the area particularly of DoC with respect to pure economic loss."

Norsk included stipulation that DoC questions must arise as "new categories" of claim

Essentially, McLachlin J's decision in Norsk said new categories could only be added when precedent allowed it, and incrementally each time for a newly defined one

Then Winnipeg Condominium v Bird Construction, 1995 SCC came, a very similar factual scenario to the one the UK HL used to reject Anns in Murphy, and LaForest J wrote that they were wrong to reject liability for dangerous construction defects, and the two-part test

Enter Cooper, wherein the importance of policy in deciding questions RE: DoC was imposed.

In relational economic loss claims, a test of foreseeability alone would produce almost "infinite arrays of DoC; if an asset is damaged it is always foreseeable that the damage may have economic consequences for people other than the owner of the asset."

This is why the proximity prong is important -- it serves to identify the categories of cases in which liability lies i.e. in Norsk the "joint" or "common venture" category

Most Canadian SCC cases relying on the Ann/Kamloops test fall under two broad types:

Public authority cases

Anns must be carried out in full here, as the judge is deciding whether imposing a DoC would adversely affect ∆'s ability to carry out statutory responsibilities

Private actor liability for new types of harm or obligation (i.e. affirmative action duties)

 

When you are looking to interpret a new DoC and it is a regulatory duty delegated by a statute, you must check it against the Act that it is devolved from. That is often where you will find the DoC that they are responsible.

Reasonable foreseeability must be addressed in every establishment of a DoC

Can be affected by facts of case, but are generally evaluated based on the classes of cases

 

Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC

F: π was wrongfully convicted for 20 months for robberies that he did not commit. The evidence included a tip, a PO's photo ID of π, eyewitness IDs, a potential sighting near one of the robberies and witness statements saying the robber was Aboriginal. More robberies in similar circumstances happened while he was in jail, and so he appealed his guilty verdict and a second trial was ordered, where he was acquitted. Brought a civil action in negligence against the police based on their conduct in the investigation. Trial judge dismissed the claim, π appealed. ONCA unanimously recognized the tort of negligent investigation, however the majority held that they were not negligent in their investigation. Π appealed, ∆ cross-appealed for the finding that there was a tort of NI.

I: Is there a DoC owed to suspects by police officers, and if so, should it be applied in this case?L: Police officers owe a DoC to suspects. Their conduct during an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. POs may be accountable for harm resulting to a suspect if they fail to meet this standard. A: (McLachlin CJ) "A person owes a DoC to another if the relationship b/w the two discloses sufficient foreseeability and proximity to establish a prima facie DoC."

In this relationship, RF is clearly made out because a NI may cause harm to the suspect.

Further, the police singled him out as a suspect and began to investigate

Proximity is made out as the relationship is clearly "personal, close and direct" as he has been singled out and the suspect has a "critical personal interest in the conduct of the investigation."

At stake is his freedom, reputation and how he may spend a good portion of his life

On the second tranche of the test, there are no policy reasons to negate the DoC. Investigating suspects does not require the PO to make quasi-judicial decision as to legal guilt or to evaluate evidence according to legal standards.

Recognizing a DoC will not raise the reasonable standard required for conduct around an arrest, prosecution, search or seizure. There is no established record that recognizing the tort will lead to a flood of litigation; the inherent safeguards of tort law regarding onus of establishing a claim prevent that.

Police are highly trained professionals and won't become overly cautious or scared because they are owing a duty that they should have been operating with all along

Good policy reasons TO recognize the DoC, as an important category of police conduct with the potential to "seriously affect the lives of suspects will go unremedied if a DoC is not recognized."

A conflict between proposed private/public duties does not automatically negate finding a duty of care. The duty is to conduct reasonable investigations w/i the limits of the law.

RE: the negligence claim: π alleges that

The identifications by the two bank tellers (that ultimately led to his conviction) were interviewed together, with a newspaper photo ID'ing him as the suspect on their desks

The methods used to interview witnesses and administer a photo lineup was objectionable

Police failed to adequately reinvestigate the robberies when new evidence emerged that cast doubt on his initial arrest

Sidebar: ONCA found there was a tort of NI, and that the appropriate standard of care is a reasonable officer in like circumstances, but split on how to apply it. The majority found:

Impugned elements of the investigation pre-arrest complied with the standard of care

With a lack of uniform rules relating to photo lineups at the time, it was not clear that the PO failed to do what a reasonable PO would have done

Because of Hamilton's large city status, the court held that the lack of continued investigation was not negligent as it did not necessarily translate to doubt for the π

Not reasonable to connect later robberies to the earlier ones as new element of gun

Police did drop some of the charges after the new revelations, and key evidence remained unchained even after Sotomayer was arrest for the robberies; and the ultimate decision to proceed to trial was made by the Crown not the police

C: The PO's conduct in this case meets the standard of a reasonable officer in similar circumstances and therefore the π's claim in negligence is not made out.

Dissent: (Bastarache, Charron and Rothstein JJ) Tort of NI should not be recognized. A private DoC owed by police to suspects would necessarily conflict with an officer's overarching public duty to investigate crime and apprehend offenders, which arguably would defeat the prima facie DoC proximity requirement. But even if it were recognized, it should fail the second step, as it would have significant consequences for other legal obligations and would detrimentally affect the legal system and society more generally.

Jane Doe is very specific for a class of potential π, as police had not sufficiently warned female residents of a very specific neighborhood where sexual assaults of a very geographically specific and factual circumstances were taking place. So highly specific and contextual, that it cannot be extended to suggest that there is a general DoC

Intractable conflict with the existing public duties that the police officers owe and the proposed private law duties of care that they would owe if this would imposed

Victim's interests will always be aligned with the police, but the accused's interests will always be diametrically opposed to that duty as they do not want to be investigated

 

Brown v Canada AG, ONCJ 2017

F: Class action proceeding following on the Sixties Scoop class action. Π asks that the certified common issue focusing on the liability of the federal gov't be answered in favour of the class members. Concerns the "uncontroverted evidence of the π's experts that the loss of their aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives." Psychiatric disorders, substance abuse, unemployment and numerous suicides were results.I: Can Canada be found liable in law for the class members' loss of aboriginal identity after they were placed in non-aboriginal foster and adoptive homes?

Focus of the issue is the action or inaction of Canada, and only on the time period after the children were placed in the homes. Did Canada breach fiduciary duties?

A: (Belobaba J) Canada was obliged under §2(2) of the 1965 Agreement to consult with each Indian Band before any provincial welfare program was extended to reserves, but no consultations ever took place. The Bands suggested that even if they had consented, they would have asked to supply a booklet on aboriginal heritage, which would have at least contributed to the prevention of the loss of identity.

Therefore, Canada failed to take reasonable steps to prevent the loss of aboriginal identity

Π makes two submissions for their duty of care: one in fiduciary law and one in common law

Judge says no fiduciary duty here. While the Crown is in a fiduciary relationship with Canada's aboriginal peoples, it does not necessarily equal a fiduciary duty. That can only be imposed in one of two ways:

As a result of the Crown's assumption of discretionary control over a specific aboriginal interest i.e. a communal interest in land integral to the community

If three elements are present: (a) an undertaking to act in the best interests; (b) a defined person/class vulnerable to the fiduciary's control; and (c) a legal practical interest of the beneficiary that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control

No FD under i.) as no land interest and no FD under ii.) as even if the judge agreed the first two elements were satisfied, they could not find that Canada assumed such a degree of discretionary control over protection/preservation of aboriginal identity that it amounted to "direct admin of that interest"

Common law DoC: arises out of the fact that the agreement is analogous to a third-party beneficiary agreement. The π's claim flows directly from the fact that at the time of entering agreement, Canada assumed (and breached) obligation to consult with the bands.

Third-party beneficiary DoC from solicitors -> their clients (testators) -> and beneficiaries of wills. Solicitors owe a DoC to both parties; it is a well-known relationship in history and law and analogous to this situation

The distinction between bands and the children as parties is formalistic and in this instance semantic, as there were notions of good faith, political trust and honorable conduct that were flagrantly disregarded by Canada

EVEN if we must resort to establishing a new DoC, applying the Anns-Cooper test finds that (a) there is a prima facie duty of care based on the unique and special relationship between Canada and the First Nations band; and (b) it is beyond dispute that given such a close and trust-like proximity it was foreseeable that failure on Canada's part might cause harm to children

Further, Canada has not advanced any credible policy considerations that would negate the common law DoC, which therefore allows us to find a new duty.

In executing its operational policy, Canada ought to have had these people in mind and by extension, these specific harms at stake

C: Duty established, the case can proceed in favour of the plaintiff.

 

Anns-Cooper approach is used to ensure that the "law of tort is developed in a manner that is sensitive to the benefits of recognizing liability in novel situations where appropriate, but at the same time, sufficiently incremental and gradual to maintain a reasonable degree of certainty in the law."

On PROXIMITY: the most basic factor is whether there is a relationship b/w the parties that can be described as "close and direct."

It is not concerned with how intimate the two were, mainly just whether their actions have a close and direct effect on the victim.

 

Rankin v JJ, 2018 SCC

F: C and J found an unlocked car with keys in it, C crashed the car on the highway and J suffered a bad brain injury. J's guardian sued the lot they found the car in (R), C and C's mother for negligence. At trial, it was held that R owed a DoC to J. Apportioned liability as: R's garage 37%, C 23%, C's mother 30% and J 10%. Upheld at ONCA. I: Does R owe J a DoC?L: A business will only owe a DoC to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.A: (Karakatsanis J) π did not provide sufficient evidence to support the establishment of a DoC in these circumstances. While the theft was reasonably foreseeable, it wasn't RF that someone could be injured by said stolen vehicle. No evidence to support the inference that the stolen vehicle would be operated in an unsafe manner.

RE: RF, when determining, the question is has the π "offered facts to persuade the court that the risk of the type of damage that occurred was RF to the class of π that was damaged."

RF question must be framed in a way that links the impugned act (leaving the vehicle unsecure) to the harm suffered by the π (physical injury).

Not enough to determine whether the theft was RF; further evidence is needed to create a connection between the theft and the unsafe operation of the stolen vehicle

Case law sets out that the risk of theft does not automatically include the risk of injury from the subsequent operation of the stolen vehicle

Concluding that that risk of theft includes risk of theft by minors would fundamentally change tort law and result in a significant expansion of liability.

The only evidence suggesting youth might be prone to hang out there is J's father saying he had seen lots of kids hanging out at the variety store across the street (chips, pops, other kids were there, it was open late)

Positive Duty: i.e. bar owners have a positive duty to take steps to prevent potential harm caused by intoxicated persons, but this is based on a number of things incl. regulatory context of alcohol sales, contractual relationship between the bar and the customer, and the fact that bars have a commercial incentive to overserve alcohol. "Commercial garages do not universally fall within this category."

While there are often specific obligations owed to children, they are based on the relationship of control, responsibility and supervision, which does not exist here.

If the mere fact of illegal behavior could eliminate a duty, this would effectively immunize negligent ∆s from the consequences of their actions. Π wrongdoing is integrated into the analysis through contributory negligence.C: Appeal allowed, claim dismissed with costs to the ∆.

Dissent: (Brown J) "Foreseeability of physical injury" is itself a recognized "category" of DoC

 

Jordan House v Menow, 1974 SCC

F: ∆ was a local who frequented the π's hotel bar often, and had been banned from the hotel without being accompanied by a "responsible person". He came with two people and then they left, and the hotel kept serving him beer and then he was too drunk and became a nuisance and was kicked out. He was hit by a car half an hour later while walking home. Trial judge found that the hotel owed a DoC to the ∆. I: Do hospital owners owe a DoC to patrons of hotel bars? If so, what is the scope?L:  The breach of duty was a result of both a failure to protect ∆ once he became intoxicated and a failure to ensure he did not become intoxicated in the first place.

Duty to take reasonable steps to ensure he gets home safely

Recognizes an affirmative  DoC between commercial vendors of alcohol and patrons

Grounded in the economic relationship of selling alcohol and consumption; and it includes in case to take reasonable steps to ensure that patron has a safe mean home

A: (Laskin J) Trial judge found that the Liquor Licence Act imposes a duty on a hotel to eject an intoxicated person and empowers his forcible removal if they refuse to leave, but that duty is qualified by a duty not to subject them to danger of personal injury foreseeable of eviction.

ONCA agreed and dismissed the appeal on the grounds that the hotel breached the DoC

Based purely on serving the beer, the risk to injury could be said to have been created by the ∆ for drinking too much on the night in question. However in this case, the hotel was not a random person who saw an intoxicated person; it was an in an invitor-invitee relationship and was aware of his intoxicated condition.

I-I relationship means there is an economic incentive for people to come in and purchase alcohol; it is diametrically opposed to responsible monitoring of individuals around cutting people off. This provides for courts a foundation to impose this duty.

It also contravenes statutory provincial obligations; as well as their own house rules regarding serving the ∆, therefore their conduct violated all of these things

There was a probable risk of personal injury to ∆ if he was turned out of the hotel to proceed on food on the busy highway in front of the hotel

Given the relationship between ∆ and π, the π's knowledge of his propensity to drink and instruction not serve him without a babysitter, and the fact that he was still served as well as statutory injunctions against serving too drunk patrons, the proper conclusion is that the hotel came under a DoC to ∆ to see he got home safely.

The harm that ensued was RF by reason of what π did (turning ∆ out) and failed to do (in not taking preventative measures).

A great deal "turns on the knowledge of the operator of the patron" (and historical understanding of this likelihood of drinking to excess), that it was a dark and rainy night, he was wearing dark clothing and it was located on a highway, as well as his condition where the issue is liability in negligence for injuries suffered by the patron.C: Appeal dismissed with costs to the π.

Notes: RE: Anns test alternative remedy negation: while the statute may fine the π for behaviour, that doesn't provide the ∆ with a remedy in common law for finding a way to get a remedy for himself.

 

Stewart v Pettie, 1995 SCC

F: ∆ was drunk well over the legal limit at a work event with his wife and his sister and her husband. He drove home afterwards (even though the wives were sober) and on the way he got into an accident, and π was rendered quadriplegic. I: Did the bar meet the SoC required of a vendor of alcohol, or was it negligent in failing to take steps to ensure that the ∆ did not drive after leaving?L: Commercial vendors of alcohol do owe a DoC to third party users of a highway or third parties that could be injured by an intoxicated patron, and that duty is to take reasonable steps to prevent an intoxicated patron from driving or doing other activities that pose a foreseeable risk of injury to themselves or to third parties.

Opportunity to monitor alcohol: establishments that serve alcohol have a duty to intervene in appropriate circumstances, or risk liability. Liability cannot be avoided where they have structured the environment to make it impossible to monitor.

A: (Major J) The present case is a third party is claiming against a commercial host. Was there a causal connection between the ∆'s allegedly negligent conduct and the damage suffered by the π?

In this case, there was a sufficient degree of proximity between the establishment and the π that a DoC existed between them.  The class of persons is someone who could be expected to be on the highway, so it doesn't matter if she was in the car or a passenger in another

"Duty is more appropriately reserved for the problem of whether the relation b/w the parties warrants the imposition upon one of an obligation of care for the benefit of the other, and it is more convenient to deal with individual conduct in terms of the legal standard of what is required to meet that obligation"

Courts determine the existence of a duty relationship and lay down the standard of care, the jury translates that general into particular standard suitable for the case at bar

"No question" that commercial vendors of alcohol owe a general DoC to persons who can be expected to use the highways; it ought to be in the reasonable contemplation of such people that carelessness on their part might cause injury to such third parties

Π comes within the class of people that are people that are on the highway that could be impacted or affected by the drunk patron's usage of the highway

DoC extends from the commercial host to the patron to the people that could be affected by the intoxicated person's conduct

C: Appeal allowed, cross-appeal dismissed.

Misfeasance (grounded in negligence) is when a ∆ is already engaged in a course of conduct or action and they are doing it without sufficient care or attention.

Good Samaritan laws do not exist in Canada; we do not have generally positive duties to intervene and help others.

Affirmative DoC or duties based on nonfeasance. These are when the ∆ has a failure to act. Tends to be identified in three circumstances and special relationships:

Supervision or control

Economic benefit

Statutory regime that imposes special duties or obligations

 

Childs v Desormeaux, 2006 SCC

F: After a NYE party, ∆ drunkenly drove his vehicle into oncoming traffic and collided head-on with a vehicle wherein the π was a passenger. Π's spine was severed and she was paralyzed from the waist down. He was significantly over the legal limit and pled guilty to a series of charges arising from these events and received a 10-year sentence. The party was BYOB and the only alcohol served by the hosts was a bottle of champagne at midnight. TJ found there was reasonable foreseeability of accident but dismissed the prima facie DoC due to the social and legal consequences that would arise on social hosts. ONCA dismissed the appeal on stronger grounds, saying that unless social hosts are actively implicated in creating the risk, no liability.I: Do social hosts owe a DoC to third parties who may be injured by intoxicated guests? L: RF without more may establish a DoC, i.e. when an overt act of the ∆ has directly caused foreseeable harm to the π (Cooper). However, when it is a failure to act, RF alone needs more to establish a DoC > (see three +DoCs below).A: (McLachlin CJ) Following Cooper, the first issue raised in this case is whether claims against private hosts for alcohol-related injuries caused by a guest constitute a new category of claim, which McLachlin concludes it does. However, three differences in the π-∆ relationship that suggest commercial hosts are different than social hosts:

Commercial hosts have the advantage in capacity to monitor consumption, especially because of economic incentive to watch consumption (to supply more) and statutory obligations (i.e. safe drinking requirements)

Strict regulation (i.e. LCBO/Liquor Licence Act) means there is a clear regulatory environment in place that there is an attendant function i.e. LCBO officer or bartender who is aware of "cut off" functions and bouncers. Party hosts have no institutionalized way to monitor or a set of expectations that would permit them to do so

Fundamentally different relationship: commercial servers have an incentive not only to serve, but to serve too many; over-consumption is more profitable than responsible consumption. Strains go many ways: i.e. tax-payers, third parties on roads, the drink, but the benefits are exclusively on the barkeep.

"This perverse incentive supports the imposition of a duty to monitor alcohol consumption in the interests of the general public."

RE: prima facie DoC: No social host pf DoC as (a) the injury to π was not RF on the facts found by the TF and (b) even if it were, the wrong alleged is a nonfeasance in circumstances where there was no positive duty to act.

The inferential chain from D&Ding in the past to RF that it will happen again is too weak to support the legal conclusion of RF, even in the case of commercial hosts

The host accompanying the ∆ to the car doesn't show any evidence that the host knew how intoxicated the ∆ was when he got in the car as the factual basis doesn't support it

RE: misfeasance vs nonfeasance: RF without more may establish a DoC, i.e. when an overt act of the ∆ has directly caused foreseeable harm to the π (Cooper). However, when it is a failure to act, RF alone needs more to establish a DoC.

To establish a positive DoC, RF must be present and other aspects of relationship b/w π-∆ must establish a special link of proximity. Three situations the Court has set out:

Where a ∆ intentionally attracts and invites third arties to an obvious risk they created/control i.e. boat captain owes a +DoC to rescue a passenger overboard

These cases turn on the ∆'s causal relationship to the origin of risk of injury to the π; nonfeasance does not immunize them from consequences

Paternalistic relationships of supervision/control i.e parent-child, teacher-student

Rests on special vulnerability of π and formal position of power of ∆

Where a ∆ exercises a public function or engages in a commercial enterprise that includes implied responsibilities to public at large (Jordan House)

∆ offer a service to the public that includes attendant responsibilities to act with special care to reduce risk, i.e. commercial vendors of alcohol

The overarching theme here is that the ∆ has created the risk or is in control of the risk that others are invited to participate in. The operator of the risk must do so in a minimizing manner.

Argues for finding a DoC

Further is the concern for autonomy of the persons affected by the +action proposed.

Argues against finding a DoC

Competent people are allowed to engage in risky activities; and third party witnesses of risk are allowed to decide not to become rescuers.

Theme of responsible reliance unites all three categories: the person inviting others may reasonably expect that those taking up the invitation will rely on the operator to ensure that the risk is a reasonable one or will take appropriate rescue/protective action if it is required.

Is incredibly fact-specific

"The consumption of alcohol and the assumption of risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity."

C: No pf DoC established, appeal dismissed with costs.

Standard of Care

Solomon, "The Standard of Care"

Once it is established that the defendant owed a DoC to the π, it becomes necessary to formulate the SoC and to determine whether that was breached. Standard of care determines how the ∆ should have acted. A breach happens if they acted without that requisite degree of care.

Recommended to use negligence to refer to the CoA as a whole and use carelessness to describe the fact that the ∆ breached the SoC

Judge determines the standard and then juries apply it to the facts of the case to see if it was breached.

 

Arland v Taylor, 1955 ONCA

F: π was hurt in a car accident; jury held that the ∆ had not breached the requisite SoC. Π appealed, objecting to the TJ's charge to the jury.I: What is the standard of care expected, and how should it be charged to juries?A: (Laidlaw JA) The SoC by which a jury is to judge the conduct of parties is of a reasonable person, not the jury putting themselves in the shoes of the ∆, which is not the RP test. The RP is a "person of normal intelligence who makes prudence a guide to his conduct. He acts in accord w/ general, approved practice."

Crucially, it is an impersonal test that eliminates the personal equation and is independent of individual idiosyncrasies.

RP SoCs do not require the highest degree of care which mankind is capable as that would be unduly hampering.

It is improper for a jury to judge the conduct of a person in given circumstances by considering what they would have done in the circumstances.

 

Ryan v Victoria, 1999 SCC

Sets out the SoC as: "Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the SoC that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on facts of the case, including the RF of harm, the gravity of the harm, and burden which would be incurred to prevent injury. You can also look at customs, industry practices and regulatory standards.

 

When determining breach, judges consider several factors, the two most important being:

The probability of injury

The potential severity of injury

Balanced against private and social costs of avoiding risk and social utility of the ∆'s conduct

*Important: must be assessed at the time of the alleged breach rather than in hindsight. After the fact, it may be obvious that the ∆ should have acted more carefully. Think Roe v Minister of Health (1954 UKCA) where Denning J found that while the medical community now recognised the danger of story spinal anesthetic in glass ampoules in 1954, at the time of the incident it was not recognisably dangerous.

"We must not look at a 1947 accident with 1954 spectacles."

 

Bolton v Stone, 1951 UKHL

A: (Reid LJ) It was RF that an accident such as this might possibly occur during the ∆'s cricket matches. However it has happened very rarely -- only proven to be six times in 30 years. Generally speaking, if injury to another person from the ∆'s acts are RF, the chance that injury will result is substantial and it does not matter which way the duty is stated.

 

Perilli v Marlow, 2018 BCSC

F: π was jogging in his neighbourhood and intended to pass three girls on their bikes. ∆ moved her bike as he was attempting to pass and he hit the rear tire and fell to the ground. He suffered various injuries and had to get surgery for his shoulder.I: Is ∆ liable for a breach of her standard of care in negligence?A: (Dley J) The SoC of a ten-year old is different than the standard attributable to an adult. A child is to be measured with the standard that conforms to another child of similar age, intelligence and experience.

RE: Motor Vehicle Act, RSBC 1996, c318 §183(2)(a), not riding on a sidewalk: π wasn't on the sidewalk. She never breached her duty in that regard.

RE: §183(2)(d), prohibition of riding abreast another on the roadway, her friends were on the sidewalk. She was not riding abreast of them on the road, and therefore did not breach her duty.

RE: §183(17) requiring hand signals, she did not turn, she merely repositioned herself in her own lane of travel, and wasn't required to make signals

She looked back twice while she was repositioning herself, and remedied her affidavit claim that she looked back three times, which is a signal that she is being truthful. She was paying proper attention to her surroundings and acted with due care and attention.

Not a standard of perfection -- perfect would have been looking back three times. But she satisfied her standard of care owed to the π as a user of the road.

C: Action dismissed with costs to π.

 

Stewart v Pettie, 1995 SCC (revisited)

L: If a DoC is established, the question turns on whether the special relationship requires a positive obligation to act. If there is no RF risk as a result of the circumstances, no action is required.

A: (Major J) To hold that overserving the π is per se negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. While statutory obligations not to overserve are relevant, there was no proof that ∆ showed no signs of over-intoxication.

Without a reasonable foreseeable risk of harm to him or a third party, overserving ∆ is an innocuous act. To find liability, it must be in the company's failure to take any affirmative action to prevent the RF risk to π.

To impose positive duties of care, it requires situations wherein one is under a duty not to place another person in a position wherein it is foreseeable that the person could suffer injury (i.e drunk tubing in Crocker v Sundance)

Two step test that must be answered:

Was the ∆ required in the circumstances to take any positive steps at all. If this is YES, then:

Whether step steps taken by the ∆s were sufficient to discharge the burden placed on them.

Think of Hague v Billings: first bar didn't serve the ∆ because they thought he was too drunk and the second bar did, and made no attempt to discover if he planned to drive, even though it was located on the highway and the only practice way there was to drive. First bar wasn't found liable, second bar was.

As the general DoC between establishments serving alcohol and persons using highways has already been established, the question turns on whether this special relationship permits a +obligation to act.

However, where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relationship.

The bar can't escape liability just because he wasn't showing signs of intoxication; the waitress kept a running tab and therefore knew he had consumed at least 10 to 14 ounces of alcohol. However, the key distinction is that he was with his sober wife and sober sister, and therefore it isn't reasonable to suggest that they had to do more. They would have known how much he had to drink, and that discharged the bar's liability to "do more" as they would have been able to reasonably assume that the two sober people were capable (and crucially, charged with) finding alternative transportation.

Therefore not necessary for the bar to enquire who was driving or that it would have made any difference if they had. It was not RF that ∆ would be driving when a sober wife and sister were present with full knowledge of the circumstances.

Bars still have a duty to ensure they don't incur liability for over-indulgent Christmas party attendees as they would be able to reasonably foresee the risk created in the way environment was structured

C: On the facts, the bar did not breach the DoC they owed to the π. Appeal allowed.

 

Hill v Hamilton-Wentworth, 2007 SCC (revisited)

L: SoC must be considered in the time and circumstances that it was executed, and is not held to a standard of perfection.

A: (McLachlin CJ) The R police office in like circumstances standard is generally appropriate here. Laying charges are informed by legal requirement of reasonable and probable grounds to believe suspect is guilty. Since law requires such grounds, a PO acting reasonably in those circumstances would insist on them.

Similarly, the general rule for SoC in negligence is that of the R person in similar circumstances. In cases of professional negligence, this is qualified by the additional expectation that where the ∆ has special skills and experience, they must live up to the standards expected by that skill and experience

As police conduct has the capacity to seriously affect individuals by subjecting them to full coercive power of the state and impacting on their repute and standing in the community, as well as potentially their liberty, it follows that POs should perform their duties reasonably.

Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided they stay w/i the bounds of reasonableness. SoC is not breached if the PO operates in a manner deemed suboptimal by the reviewing court; discretion is inherent with the job and YMMV.

The standard is not perfection, or even optimal, judged in the vantage of hindsight.

While the investigation that led to arrest and conviction was flawed, it did not breach this SoC

We must consider the conduct of the investigating officers "in the year 1995 in all of the circumstances, including the state of knowledge then prevailing." Viewed from this, the first four complaints, while questionable, were not a sufficient enough departure from the standard of an R PO in similar circumstances. From today's standards, they are bad police practice but that doesn't mean the respective SoC was breached necessarily.

When new information emerges that could be relevant to the suspect's innocence, R police conduct may require the file to be reopened and the matter reinvestigated.

C: No, the PO did not breach his SoC owed to the π.

 

Peters v Peel School District, 2016 ONSC

F: π sued the ∆ for negligence after she was injured during a long-jump practice. She hurt her left knee during a practice and had an operation eight months later to repair a tear, and alleges that after the injury and surgery, her condition deteriorated and she did not succeed in her dreams of being a dancer.I: Did the ∆ breach its SoC to the π?

A: (Edwards J) The Court found that the ∆s owe a DoC, and the standard is that of a careful and prudent parent. She went through the coach's "progression sport" calibre training itinerary, which featured  scheduling that ensured the students didn't partake in a sport before they were ready for it or in the right safe environment (whether that meant being at the actual meets).

The court applies two distinct analyses of the SoC:

To determine if ∆'s conduct was negligent in leading to the injury; and

To determine if ∆'s conduct was negligent in treating the injury after it occurred

RE: pre-accident negligence allegations:

Π testified that she signed a participation form at discovery and then reversed that at trial

Π testified she attended 8 practices but only attended 4, but testified that she attended 7 to 10

Found that the π had experience doing the long jump and therefore would understand the difference between a run-through, a pop up and a regular jump, and was not a novice.

The coach was on field. As running and jumping is a site supervision sport according to guidelines (and not a constant visual supervision one like throwing), which is a factor for satisfying SoC

While the Court couldn't determine whether π was alone at the field jump pit practicing, it doesn't matter as there was field supervision

Coach met the SoC of a prudent parent for several reasons:

(a) appropriately instructed the π to only perform run-throughs;

(b) inspected the long jump pit

(c) complied with OPHEA guidelines;

(d) a prudent parent would not have constant supervision but rather general supervision;

(e) π wasn't practicing by herself (but even if she was, that wouldn't breach the SoC); and

(f) if π did a pop up jump, she directly contravened ∆'s instructions, and injured herself on takeoff

RE: post-accident care: regardless of conflicting testimony, both parties agree that the coach instructed π on RICE (rest, ice, compress, elevate), but more inclined to believe the coach's testimony as π has proven unreliable in multiple instances.

Add in the age and competency of the π, when the ∆ asked a series of question regarding the injuries, she could reasonably assume the π's injuries were not serious or severe to warrant more based on the responses that she received

Couldn't have taken the aunt 2 1/2 hours to get from Brampton to Mississauga, and significant inconsistencies between the evidence at trial and previous testimony given

C: ∆ satisfied the SoC of a prudent parent, and is not negligent in breaching it.

 

When assessing the SoC, we determine what steps a ∆ ought to have taken to meet it. These include:

The probability and severity of harm

The cost of risk avoidance

The social utility or value of the conduct

 

Problematizing the Standard of Care 

Friedland, “Navigating through Narratives of Despair”

While we know that statistically, Indigenous people are more likely than non-Indigenous people to be victims of crime, especially violent crime and spousal assault. Indigenous women now make up 33% of the federal inmate population in Canada, a 109% increase from 2001-2011.

The Reasonable Cree Person: clearly a cut above the mythical images of Indigenous peoples such as lawless, vanishing, performing, essentialized or "barbarians". But they are also not the "wise old elder" or "noble" selfless environmental steward. They muddle along as an ordinary human actor capable of understanding and engaging rationally with laws.

Some legal theorists hold that law is used in the daily lives of citizens as a practical guide to reason through and make decisions in their own social circumstances.

The RCP is just this: an ordinary legal actor who uses the Cree legal tradition as a practical guide to think through and make reasonable, principled decisions when called to judgment

The starting point is before contact: Cree and other IPs have managed/responded to universal issues successfully enough to maintain civilized societies for time immemorial

Cree legal traditions aren't perfect, but they are also not non-existent. They are reasonable legal orders with reasoning people.

Location, biology nor blood do not make a RCP Cree; rather it is the reasons with and through they use through the Cree legal tradition to make decisions. We are talking about Cree narratives that give social rules meaning, that make them meaningful, and that make sense of the world around Cree individuals and communities.

Legal traditions are not only prescriptive, as norms that have endured, but descriptive.

The Cree's animating principle is wah-ko-to-win (our interrelatedness) only scratches the surface of the vast Cree intellectual resources that make up the multi-generational project that is the CLT

The RCP's thinking reflects a long history of Cree legal thought and experience, but it also is not immutable: it reflects the current political, social, economic and natural realities of today and legal relationships with other peoples.

Her mind is not an "empty vessel formed in an imaginary terra nullis." She carries a vast storehouse of experience and solutions; which is why it is imperative to access, understand and apply Cree legal principles to the "devastating social circumstances" of today.

 

Moran, “Common Sense Ideas o