Tort Discussion Questions

Module 1:
Linden, A. M. “Tort Law as Ombudsman.” Canadian Bar Review 51.1 (1973): 155-168
Available online through Osgoode Hall Law School Digital
Commons: http://digitalcommons.osgoode.yorku.ca/scholarly_works/582/
Download http://digitalcommons.osgoode.yorku.ca/scholarly_works/582/
After reading the article, please consider the following questions:
• Do you agree with Linden’s general thesis that the “publicity sanction” is a
remedy available to “ordinary citizens”? Why/why not?
• Given that Linden wrote this article in 1973, in your opinion has the function
of Tort Law as a “watchdog” been more or less effective in the last 40 years?
Please consider this within the context of Canada and oversight of medical
and police personnel and government institutions.

Module 2 – Topic 3
Cooper v Hobart
The facts of Cooper involved an investor who sued the B.C. Registrar of Mortgage Brokers, an
authority established under a statute, for negligence. The investor, Cooper, had lost a significant
amount of money because his mortgage broker, Eron, had been using investors’ money for
unauthorized purposes. Cooper claimed that the Registrar of Mortgage Brokers should have
suspended Eron’s license as soon as it found out that Eron was violating the Mortgage Broker’s Act
and not waited as long as it did before doing so. As a result of the slow investigation, Cooper claims
he lost more money than he otherwise would have.
The issue in this case was whether the Registrar owed a duty of care to the investing public to
oversee the investment activities of its registered brokers. This was a novel duty of care situation, as
there was no existing recognized category of duty of care between investors and such a Registrar.
The Supreme Court of Canada reaffirmed that in novel cases, determining whether a duty of care
exists depends on the 2-stage test outlined in Anns. Then the Supreme Court of Canada went on to
add what it calls a “gloss” on the Anns test, in which the Court “hones the role of policy concerns”
that Anns raised (at para 1).
Question:
Cooper can be criticized as a retreat from what some legal scholars viewed as the
Supreme Court’s retreat from a more-pro plaintiff position.
• What do you think of the judgment?
In your opinion was it well-written?

Module 3 – Open Discussion
Topic: Negligence Principles: Standard of Care and Special Standards.
You may want to compare earlier cases with more recent decisions to see how the basic
principles of Standard of Care have evolved with time (some suggested cases are below
for the discussion, but you can comment on any of this week’s case readings):
• Vaughn v Menlove (1837, UK) Download Vaughn v Menlove (1837, UK)
• Gloster v Toronto Electric Company (1906), 38 S.C.R. 27 Download Gloster
v Toronto Electric Company (1906), 38 S.C.R. 27
• Neuzen v Korn [1995] 3 S.C.R. 674 [Note 29)
• Fiala v Cechmanek (1999), 71 Alta. L.R. (3d) 72 (C.A.) [Note 49]
• Fontaine v Insurance Corporation of British Columbia [1998] 1 S.C.R. 424

Module 4 – Topic 4
Topic 4: Causation Principles from
Case Readings
The case law and text readings cover most of general areas of Causation and what you
need to know for this Module. The text mentions the American concept of Market Share
Liability (liability based on corporate market share of a product available to the public)
but this concept of collective liability has not been tested yet in Canadian
courts. Similarly, loss of chance as a distinct head of damage has not been adopted in
Canadian law, although the unfairness principle of a rigid analysis is obvious in many of
these cases, as noted in the text reference to Cottrelle v Gerard (2003), 233 D.L.R. (4th)
45.
I do want to add comment a bit on the cases, especially Athey and Snell, on points I did
not address above. I won’t comment on every case you read for the Modules but please
post any questions you may have about any cases on the discussion forum.
Athey:
• The Court here goes through a series of clever arguments by the defendants
(who were the respondents on this appeal). The arguments were unsuccessful,
but I would say this was good lawyering, trying to draw analogies to rules that
would limit their clients’ liability.
• The basic argument (see para 12) was that the compensation should be
divided among the defendants based on degree of causation. We touched on
that issue earlier in the Module. As Major J says at para 12 that is now how it
is done.
• The Court emphasizes at paras 17, 20 that a defendant’s negligence does not
need to be the sole cause. This also means the negligence does not need to be
“sufficient” to cause the injury, i.e., enough, on its own, to make the injury
happen: “As long as a defendant is part of the cause of an injury, the
defendant is liable, even though is act alone was not enough to create the
injury.” The other causes can be other negligent acts, or non-negligent acts or
pre-existing conditions that contribute to the harm.
• Paras 31-33, on intervening causes, are a good summary of the law:
Snell:
• This can be viewed as companion to the later decision of Fontaine. In the two
cases, the Supreme Court has declared that the onus of proof never shifts.
There is never a presumption of negligence, or a presumption of causation,
which the defendant must rebut to avoid being liable. The plaintiff always has
the onus to prove each element of negligence (here, causation; in Fontaine,
negligence).
• The subtle point about “tactical burden” at p 330 is important to grasp. The
onus does not shift to the defendant, but of course a defendant will want to
present as much evidence as it can to oppose the plaintiff’s submissions on
each element of negligence. Failing to do so just because the defendant thinks
the plaintiff’s case is weak is akin to playing tug-of-war against a weaker team
and being so sure you are stronger that you don’t even bother to pick up the
rope and pull. Tactically, you should always pick up the rope and pull, even if
the other side has the onus.
Clements:
• I don’t have anything specific to add to what I said above. Here I just want to
repeat my suggestion at the start of this Module that you read the full
decision. The text gives a good summary of the decision and the legal
principles it defined relating to the material contribution to risk test. But it
omits the Supreme Court’s complete summary of Canadian and U.K.
precedents—including Fairchild. These summaries are models of how to briefly
note the facts that are relevant to the issue being analyzed.
Cook:
• This is an excellent example of when “but for” proof is impossible. Note, however,
that Cook was decided on a different basis. The Supreme Court in that case applied a
reverse onus. The text points out (at p. 59) that the 2007 Supreme Court decision
in Resurfice has reclassified the case as one of “material contribution to risk.”
Clements seems to endorse this reinterpretation. So if a Cook-like scenario arose
today, it would likely be decided using the Clements test, not a reverse onus.
Comment on Authority of Appeal Courts to Overturn
Finally, although the text doesn’t deal with this issue directly, the authority to overturn a
causation finding is primarily a factual question, though there is an aspect of legal
principle in it. That “legal” aspect is the application of the appropriate test for causation
(usually “but for”). The sub-question under this test is whether in a given case there
is any evidence that could possibly constitute evidence of “but for” causation. This is
what courts call a question of “mixed fact and law.” Unlike “purely” factual questions,
appeal courts can overturn trial court decisions on questions of mixed fact and law.
If there is no evidence that can possibly satisfy the “but for” causation test, the trial
judge has to conclude that causation can’t be proved. In jury trials, the trial judge would
tell the jury that there is no evidence, and the action would be dismissed. If a trial judge
fails to do this, the appeal court can disagree and overturn the decision. This would not
be an example of the appeal court reversing the trial court on a factual matter, since the
decision about whether but for can be satisfied is a question of legal principle.
Question:
For discussion, read the explanation of thin skull vs. crumbling skull in Athey at paras 34-
36:
• Can you see the difference, contrast and point out what you think are subtle
and/or clear differences?
• Discuss the elements and development of the “material contribution to risk”
test.
• You may want to note its evolution from Cook to Clements.
You may also want to comment on the purpose of the test, i.e. general principle of
fairness, its suggested rare usage, and the fact that the Supreme Court of Canada has
never in fact applied the test to determine liability.

 

Module 5 – Topic 9
• Keizer v Hanna [1978] 2 S.C.R. 342 Download Keizer v Hanna [1978] 2
S.C.R. 342
At common law, if a person died, so did any right to claim damages against the
wrongdoer. In the mid-1800’s, the Fatal Accidents Act 1846 (9 & 10 Vict. c.93),
commonly known as Lord Campbell’s Act, was enacted in England, which allowed some
dependents to sue the wrongdoer. Until then, at common law, a dependent of the
decedent would not have been able to bring a suit at all. As the text notes at p 136, the
industrial revolution was a prime motivation in altering the growing sense of legal
unfairness after death.
The law has evolved such that now, claims for damages by the deceased’s family against
the tortfeasor are permitted pursuant to legislation. In British Columbia, the relevant
legislation is the Family Compensation Act, RSBC 1996, c 126 (see p 136, note 292 for
similar legislation in other Canadian provinces). Claims brought under this Act are known
as fatal accident claims or wrongful death actions. Section 3 of the Act entitles an action
to be brought by the deceased’s personal representative for the benefit of the
deceased’s parents, spouse or children. On the other side of the coin, if the tortfeasor
has also died, s 5 of the Act allows actions to be maintained against the tortfeasor’s
estate.
The Act is short and you can look at the relevant provisions
here: http://www.bclaws.ca/Recon/document/ID/freeside/00_96126_01
Assessing Damages in Fatal Accident Cases
So far, we have considered the various heads of damages a person may be entitled to when suffering
personal injury at the hands of a tortfeasor—such as non-pecuniary loss, cost of future care and loss
of future earning capacity—things to put the victim back in the same position the victim would have
been in if not for the injury. However, damages in a “wrongful death” case are a little different from
those in a personal injury case.
In wrongful death claims, compensation is to put the dependents back to their pre-loss position, had
their loved one not died. Legislation dealing with compensation and wrongful death is not uniform.
Compensation in British Columbia is available to a smaller group of claimants than in Ontario: the
parents, spouse or children. And since the award is for what they have lost as a result of the
deceased’s death, items such as cost of future care and more general non-pecuniary damages are not
applicable heads of damage. However, other general (pecuniary) loss and special damages are
appropriate. Special damages are recoverable for expenses spent on caring for the deceased before
his death, and for funeral expenses. Section 3(9) of the Act specifically provides for this.
An award may also be made for loss of “guidance, care and companionship.” Although not technically
considered “non-pecuniary damages,” this head of damage is much more subjective (see p 138). The
idea is that the deceased’s death, the parents, spouse or children have lost the guidance, care and
companionship the deceased previously provided. (This is different than non-pecuniary loss for pain
and suffering for injuries sustained).
In addition, loss of future earnings is a compensable loss. Here it is not the lost earning capacity that
is taken into account, but the actual loss of income that the deceased would have generated. For
example, imagine that the deceased was married with two children and had a full-time job. If the
person had not died due to the defendant’s negligence, the person would presumably have continued
working, earning wages, and supporting the family. With the death, the earnings ceased and the
family suffers a loss of those earnings. Obviously if the deceased was not employed or earning
income, then the dependents would not have a claim under this head of damage.
Keizer v Hanna and Buch, is the leading case that discusses assessing damages in a fatal accident case.
It is not referenced in our text but I’ve included it as a required case to read for this Module. In
Keizer, the plaintiff’s husband died in a car accident that was the fault of the defendant driver. The
Court allowed damages for the deceased’s loss of future earnings. The calculation was based on
projected average earnings of the deceased for the duration of his working life expectancy.
Deductions included income tax (he would have had to pay tax on that income if he were still alive),
personal use, and personal support. What was left was disposable income for the dependents. From
that amount, the Court deducted a percentage for contingencies. In addition to contingencies, tax
gross-up, and a discount rate are also applied. Unlike in personal injury claims where the future loss
of earnings is not subject to tax gross-up, in fatal accident claims, gross-up is added because income
tax is deducted from the gross income. Other kinds of damages may also be recoverable, including
the plaintiff’s loss of inheritance (which must be offset by any acceleration in inheritance from the
award), or loss of household services.
QUESTIN:
In Andrews, the parties introduced expert evidence to arrive at this rate of return, which
was calculated by subtracting the long-term rate of inflation from the long-term rate of
investment return. The court held the rate to be 7%.
• Do you think that this figure is an accurate, current reflection of the difference
between safe rates of return on investments and inflation?
• Is the 7% figure still valid in the era of low interest rates that began 17 years
ago?
• Also, give your thoughts in general on Andrews and, in particular, the parts of
the decision that you feel hold up better over time vs. other parts that may
need revisiting.

 

Module 7 – Topic 3
As we reviewed earlier, Warman v Grosvenor stretches the notion of immediate harm.
One of the keys to the decision was that the specific wording used online suggested, in
the court’s view, potential harm rather than mere rants or insults.
• Read more closely the courts’ analysis at paras 58-63, especially the second
last para of the excerpt (para 62). What do you think?
• It is also interesting to consider whether the plaintiff in Warman might have
been successful in a claim for “IINS”—and whether that tort is the more
appropriate one, compared to assault.
Of course, assault is easier for a plaintiff to prove – though the decision does seem to
stretch the precedents when it comes to the threat of immediate harm. Mr Warman’s
suffering due to the continuous barrage of online invective was real and understandable,
as the judge in that case pointed out; but might it not have more in common with the
kinds of harms that IINS addresses, and redresses?

 

Module 8 – Topic 6
Please read the following case(s) referenced in the text
o Jones v Shafer, [1948] SCR 166
Public nuisance is where the rights of the general public or particular group of people
have been unreasonably interfered with. The interests that are affected can include
public health, safety, morals, comfort, or convenience. They don’t necessarily involve
interests in land (unlike private nuisance).
Situations that give rise to public nuisance are vast and diverse. Typical examples include
unreasonable noise, or where toxic substances, such as pollution, are released into the
air or waterways. The public as a whole can be affected by such disturbances, so they
constitute a public nuisance. However, public nuisance can also include some not-socommon scenarios. For example:
o disreputable persons or businesses in the neighbourhood
(prostitutes and bawdy houses; drug dealers; etc.)
o protesters (e.g., blocking access to or use of a public space; or just
making noise)
o dangerous structures on or near public roads or highways (Mint is
an example)
In Ryan v Victoria, noted above, Major J set out a helpful definition of public nuisance.
In Ryan, the plaintiff was injured when his motorcycle tire was caught in the flangeway
gap of some railway tracks. In addition to negligence, the plaintiff also claimed public
nuisance. Proving public nuisance involves proving interference with rights and interests
of public or with use or enjoyment of private land. The interference has to be
unreasonable, taking into consideration the following:
o Inconvenience caused by the defendant’s activity
o Difficulty involved in lessening or avoiding the activity
o Social utility of the activity (its value to public, but also to the
defendant)
o General practice of others (critical for assessing reasonableness—
not in the sense of negligence, but in the sense of what is a
reasonable use of land, and what is reasonable for others to put up
with)
o Character of the neighbourhood (e.g., industrial or quiet
residential?)
The core question is a balancing act, between the public’s (and individual plaintiff’s) right
to protect its interests, on one hand, and the defendant’s right to pursue its interests, on
the other. This balancing act is true of private nuisance, as well, but in a narrower
context: in private nuisance, we focus only on what is reasonable for the plaintiff to put
up with., rather than taking the value of the defendant’s activity into account.
In general, the greater the harm to the public’s use of land, and the lower the value to
society of the defendant’s activity, the more likely it is that there is a public nuisance.
Public nuisances are now mostly offences encompassed by the Criminal Code or other
statutes (e.g., quasi-criminal or regulatory offences such as environmental protection).
The text includes the relevant excerpt from the Criminal Code, s180(2) at p 417. For
examples of non-criminal statutory offences in Vancouver, see Part XIV of the Vancouver
Charter (online link above) which lists possible public nuisances. However, because of the
broad definition of what constitutes a public nuisance, not all public nuisances are
statutory offences.
Because it is the public that is “affronted,” it is usually up to the crown (criminal action)
or the Attorney General on behalf of the people (civil proceedings) to institute
proceedings against the responsible party. Thus the general public that is affected by a
public nuisance is not able to recover damages in these actions. The problem may be
removed, but there is no compensation for past harm.
QUESTION:
By contrast, the dissenting judge, Rand J, takes a more absolute view. He says, “The
highway is primarily for the purpose of passing and re-passing; for automobiles it is
neither a storage place nor a garage. …
[T]he driver, for instance, could either by himself or by a person in the neighbourhood have
kept an indoor watch on the flares and have set up substitute warnings on the roadway when
they had disappeared.” You can call this a stricter approach to strict liability, but in fact he is
just tipping the balancing act in favour of other users of public space, relative to users who
occasionally have to stop due to breakdowns or deliveries (and blurring the line even further
between public nuisance and the “creating a danger” category of nonfeasance).
• What do you think of his view?

Module 9 – Topic 4
The Supreme Court’s Grant decision, although a landmark defamation case, isn’t widely
known in Canada outside of legal circles. On the effect of the decision more generally in
Canada, you can look to the Rob Ford affair, made possible by the Grant decision, and, more
recently, the scandal involving Jian Ghomeshi. The Toronto Star broke both of those stories,
no doubt following the Grant playbook closely. There is a good Walrus magazine article about
the Supreme Court of Canada’s decision in Grant, the Star, and Rob Ford here: Ivor Tossel,
“The Story behind the Rob Ford Story” The Walrus March 17, 2014 https://thewalrus.ca/thestory-behind-the-rob-ford-story/
Question # 1:
Read the article and discuss your opinions of its application in this case. You may want to
put out any negatives you feel result from the decision in its application to famous cases as
well as the positive results.
Ivor Tossel’s article in The Walrus provides an interesting glimpse into the actions taken
by journalists prior to Gawker, TorStar, and the G&M publishing their respective articles
on Rob Ford. I think that the article’s application to Grant v Torstar [2009] SCJ No 61
could best be framed within the context of providing a background into the time, effort,
and steps taken by journalists in order to verify the veracity of a story before going
public despite the new defence of responsible communication.
It appears that the initial investigations were triggered around 2010… “Reporters noticed
a trail of digital bread crumbs soon after Rob Ford’s election in 2010: snapshots on social
networks of a flustered mayor out on the town; oddly frequent reports of him stopping by
liquor stores” (1) but the story was not published until May 2013. In the interim, extensive
investigations were undertaken by TorStar and the G&M in an attempt to verify the
truth of the claims that Rob Ford was an alcoholic and was witnessed taking cocaine. In
this respect Ivor’s article does a good job of explaining that the stories were not merely
speculative or the result of a slow news day, but rather the result of an extensive
investigative campaign to seek the truth in line with established journalistic principles.
Knowing the extent of the effort undertaken by the journalists the defence of
responsible communication on matters of public interest is given more substance and, in
my opinion, greater respect and validity because it does not appear to be the byproduct
of laziness, mere speculation/fancy, or the media looking for an easy defence to avoid
liability for less substantive or sensationalist stories. Notably, the 2009 decision
in Grant did not appear to detract from journalists attempts to verify Rob Ford’s actions
even in 2013. I think that this bodes well for journalism in Canada and marks a positive
departure from the previous position in Hill but at the same time underscores the
importance of having a strong evidential (even if unsubstantiated) foundation to fall back
on in the event that you need to rely on the defence of responsible communication on
matters of public interest.
It’s not easy to divide the decision in Grant into simple negatives and positives. I think
that subsequent case law will further develop the defence, particularly focusing on
drawing a line as to what can be considered of sufficient public interest to merit the
defence; to what extent does the defendant need to verify prior to communicating their
story; and the extent that social media and rapid Internet consumption could play on
damages, verification or corroboration, and using the Internet for anonymity to publish
false or poorly researched stories.
McLachlin CJ., found that two conditions must be met for the defence of responsible
communication to apply:
(1) The matter must be one of public interest; and
(2) The defendant must show that he acted responsibly, in that he showed diligence in
attempting to verify the allegedly defamatory comments having regard to the totality of
the circumstances.
Although not exhaustive, in determining whether the defendant acted responsibly, a
court should consider:
(1) The seriousness of the allegation;
(2) The public importance of the matter;
(3) The urgency of the matter;
(4) The status and reliability of the source;
(5) Whether the plaintiff’s side of the story was sought and accurately reported;
(6) Whether inclusion of the defamatory statement was justifiable; and
(7) Whether the defamatory statement’s public interest lay in the fact that it was made
rather than its truth.
When applying these conditions to the Rob Ford story published by TorStar I think that
the test is met and a defence is likely to succeed – this is evidenced by the lack of legal
action: “In the end, nobody sued, although it is no stretch to suggest that the Star, at least,
quietly relished the prospect. “Not to be cavalier about lawsuits,” says Cooke, “but had the
mayor launched a lawsuit against us, we would have really looked forward to the discovery
process” (2).
The question now, and possibly a negative result of the decision, is to what extent the
courts will uphold the high standards detailed in Grant and documented by Ivor or will
we see a watering down of the truth seeking mechanisms that underpin good journalistic
practices. I think that traditional big media is more likely to adhere to higher standards to
protect their own reputation, avoid costly litigation, they are easy to locate, and have
money and/or insurance (follow the money). However, the same cannot be said of
anonymous “reporting” through platforms such as Facebook or Twitter where the use of
aliases, VPNs, and jurisdiction becomes an issue – will we see a watering down of the
test or will courts be willing to uphold a high standard against those who seek to use the
Internet as a shield? While the form of communication may have changed, I don’t think
that the standards should be lowered – the Internet may be convenient, but convenience
should not be used as a basis for avoiding liability or applying a secondary or lower
standard to Internet communication – defamation protects reputation irrespective of the
platform.
In terms of positives, I think the article and assigned readings make it fairly clear that not
all truths can be absolutely proven and the dissemination of information by the public,
provided that is is backed by strong speculation with demonstrable evidentiary effort in
attempting to determine the veracity of claims, is a good thing and pulls the tort of
defamation away from a pro-plaintiff position into a more balanced tort in general – the
defence of responsible communication is not a get-out-of-jail-free card but it does help
stimulate conversations about matters that are of public interest.
Question # 2
Large damage awards for defamation in Canada remain rare. This follows the pattern with
most other tort court actions particularly in comparison with the United States. Discuss your
opinions on this, noting any pros/cons to the approach of relatively lower damage awards for
defamation.
Awarding significant damages for defamation should remain rare. Significant damages
should only be awarded in cases where there is obvious malice, aggravating
circumstances, and sustained defamation or willful ignorance of court orders. As we
know, litigation is an expensive endeavour and for many it is out of reach. This creates a
natural imbalance between those who can afford to litigate and those who cannot; and
those who understand what defamation is and those who do not. Given this imbalance,
lesser damages act as a disincentive against using defamation as a legal weapon to
muzzle individuals. Even if the majority of cases end in settlements, legal precedence
that prefers lesser damages would suggest that settlement agreements are likely also for
lesser sums of money – why settle for $500,000 when you could argue in court and get a
lesser award? I think that we also need to consider defamation within the context of civil
litigation as a whole, particularly, defamation focuses on the protection of good
reputation – an intangible – rather than physical harm. In this respect, it would seem
unusual for awards in defamation to outstrip personal injury – reputational loss may be
unpleasant, but I do not see how it can outweigh a permanent disability due to
negligence.
With respect to cons – it could be argued that low awards act as a disincentive for cases
that may be judicially relevant and have a positive and/or scholarly impact on precedent
in Canada. If settlement is the easier route to go then why pursue court action where the
outcome is uncertain, expensive, and subject to a court calendar that may not provide a
definitive answer for years. This could lead to a situation where cases only come before
higher courts where there are deep pockets coupled with a strong personal purpose to
see the matter through to the end.
Reference:

Module 10 – Open Discussion
Q&A Forum – Please post at least one comment on the assigned topic/readings and
cases for this week: Special Topics in Negligence.
You may want to comment on whether you agree with the decisions of the assigned
cases for this week:
• Hollis v Dow Corning Corp [1995] 4 S.C.R. 634
• Hedley Byrne & Co. Ltd. v Heller & Partners Ltd

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