Torts (Canadian Common Law)

# Canadian Torts Study Notes
## GROUNDED - real Canadian citations from ca_cases (holdings from briefs where present, else established doctrine); verify before deploy.

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## Part 1: Intentional Torts

### 1.1 Trespass to the Person (Battery, Assault, False Imprisonment)

**Core Principle**: Intentional torts require intentional and direct contact or threat of contact without consent.

- **Battery**: Intentional and direct application of force to another person without consent. *Employer's Liability Assurance Corp. Ltd. v. Ideal Petroleum (1959) Ltd.* [1978] 1 SCR 230 (1976) establishes vicarious liability principles in Canadian tort law. Where force is applied without consent, the defendant is liable even if harm was not intended, only the contact itself.

- **Assault**: Intentional creation of apprehension of imminent harmful or offensive contact. Unlike battery, no contact is required. The claimant must reasonably apprehend the threat, not merely be aware of it.

- **False Imprisonment**: Intentional unlawful confinement of another person. The claimant must be aware of the confinement (or suffer harm from it). A reasonable means of escape eliminates the tort if the claimant knows of it.

**Defences**: Consent, self-defence, defence of property, necessity, legal authority (arrest, detention by peace officers).

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### 1.2 Intentional Infliction of Mental Suffering

Establishes tort liability for conduct so outrageous in character and extreme in degree that it goes beyond the bounds of decency tolerated by society. Canadian courts require:
1. Extreme and outrageous conduct
2. Intentional or reckless causation of emotional distress
3. Severe emotional distress actually suffered

Mere insults or rudeness insufficient; must shock the conscience of the community.

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### 1.3 Privacy Torts: Jones v Tsige — Common Law Intrusion Upon Seclusion

**Jones v Tsige** (2012 ONCA) created the tort of **intrusion upon seclusion** in Canadian common law:

- **Elements**: (1) intentional or reckless intrusion; (2) upon the claimant's reasonable expectation of privacy; (3) that is offensive to a reasonable person
- **Scope**: Protects against surveillance, unauthorized access to private information, body searches, photographing in private spaces
- **Remedy**: Damages (general and exemplary); interlocutory injunctions where appropriate
- **Statutory Complement**: PIPEDA (federal personal information protection) and provincial privacy acts provide parallel statutory torts but differ in scope and application

**Key Distinction**: Unlike UK/US privacy law (which typically requires public disclosure), Canadian intrusion tort applies to *private* violations even without publication.

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### 1.4 Defamation and Harassment

**Defamation**: False statement of fact that injures reputation. Elements:
1. Defamatory meaning (lowers reputation in community)
2. Published to third party
3. Reference to claimant
4. Damage to reputation

**Defences**: Truth (justification), opinion (fair comment), privilege (absolute: judicial proceedings, Parliament; qualified: public interest), honest opinion

**Harassment**: Repeated, unwanted conduct causing psychological harm or fear. Provincial harassment statutes vary; common law tort still developing.

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### 1.5 Trespass to Land and Chattels; Conversion

**Trespass to Land**: Direct, intentional entry onto land of another without permission. No harm required; tort is actionable per se. Claimant need not show damage; nominal damages available.

**Conversion**: Intentional unauthorized interference with chattels (personal property) that is so serious as to deprive owner of use/benefit. Test: would a reasonable person regard defendant's conduct as converting the property to their own use?

**Trespass to Chattels** (lesser tort): Interference with possession/use of chattels; requires proof of actual harm.

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### 1.6 Defences to Intentional Torts

**Consent**: Voluntary agreement to the act. Must be:
- Informed (actual knowledge of nature and consequences)
- Free (no duress, undue influence, incapacity)
- Express or implied (e.g., contact sports, medical procedures with informed consent)
- Limited to scope of agreement

**Self-Defence & Defence of Property**: Reasonable force to prevent imminent unlawful harm to self or property. Force must be proportionate to threat.

**Necessity**: Act causing harm is justified to prevent greater harm. Must be:
- Genuinely urgent threat
- No reasonable alternative
- Harm prevented greater than harm caused
- Act reasonably necessary

**Legal Authority**: Authorized by statute or common law (police arrest, hospital detention of patient at risk).

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### 1.7 Remedies for Intentional Torts

**Compensatory Damages**: Actual losses (pain, suffering, lost income, medical expenses)

**Punitive Damages**: Available where conduct is outrageous and intentional, to punish and deter. Canadian courts apply high threshold; typically only in intentional torts or gross negligence.

**Nominal Damages**: Awarded when tort is proven but no actual loss shown; indicates defendant was in the wrong

**Injunctions**: Interlocutory (to prevent threatened harm pending trial); permanent (to prevent future breaches)

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## Part 2: Negligence — Duty of Care

### 2.1 The Anns/Cooper Two-Stage Test (Canadian Standard)

**Critical Distinction**: Canada does NOT use the UK Caparo three-stage test. Instead, Canadian courts apply the **Anns/Cooper test** from *Anns v Merton London Borough Council* [1978] AC 728, refined in *Cooper v Hobart*, 2001 SCC 79.

**Stage 1: Proximity**
- Is there a sufficiently close relationship between the parties such that the law imposes a duty of care?
- Test: Reasonable foreseeability of injury + sufficient proximity (not solely foreseeability)
- Proximity includes: knowledge of claimant, reliance, assumption of responsibility, control

**Stage 2: Policy**
- Even if proximity established, should a duty be recognized on policy grounds?
- Factors: Alternative remedies, floodgates (indeterminate liability), public policy concerns, fair allocation of risk

**Application**: In novel duty categories, courts proceed through both stages. If established category (e.g., driver to pedestrian), duty presumed and focus is on breach and causation.

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### 2.2 Donoghue v Stevenson Neighbour Principle

**Donoghue v Stevenson** [1932] AC 562 (UK House of Lords, adopted in Canada) established the foundational negligence principle:

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

**Canadian Application**: 
- Principle adopted as baseline but refined through Anns/Cooper two-stage test
- Reasonable foreseeability necessary but not sufficient; proximity also required
- Establishes manufacturers' duty to consumers (defective products)

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### 2.3 Novel Duty Categories

**Occupiers' Liability**: Occupier of premises owes duty of care to entrants (trespassers, licensees, invitees). Scope varies by entrant type:
- **Invitees**: Highest duty; occupier must inspect and warn of hazards
- **Licensees**: Duty to warn of known hazards; no duty to inspect
- **Trespassers**: Limited duty; must not willfully injure or set traps

**Public Authority Liability**: 

*Nelson (City) v Marchi* 2021 SCC 41 addressed public authority immunity. Canadian law recognizes limited immunity for policy decisions (discretionary immunity) but not operational decisions. Immunity is narrower than in UK law; Canadian courts more readily impose duty on public bodies.

**Third-Party Acts**: Generally, defendant not liable for criminal acts of third parties unless:
- Defendant's negligence increased risk of harm
- Defendant owed specific duty toward claimant to protect from third-party conduct
- *Childs v Desormeaux* 2006 SCC 16 addressed social host liability (below)

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### 2.4 Childs v Desormeaux — Social Host Liability

*Childs v Desormeaux* 2006 SCC 16 established that a social host does NOT owe a general duty of care to guests to prevent intoxication or to third parties injured by intoxicated guests.

**Holding**: Social hosts not liable merely for providing alcohol or allowing intoxicated guests to drive, absent special relationship or assumption of responsibility.

**Significance**: Limits expansion of duty of care to social contexts; reflects policy concern about imposing liability on casual social interactions. However, specific circumstances (e.g., host knowingly supplies alcohol to minor) may create duty.

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### 2.5 Public Authority Immunity: Nelson v Marchi

*Nelson (City) v Marchi* 2021 SCC 41 clarified that public authorities are NOT immune from negligence liability but may claim immunity for certain policy decisions (as opposed to operational decisions).

**Test**:
- Operational decisions (how to implement a policy) → Full negligence liability applies
- Policy decisions (whether to adopt a policy, allocate resources) → Immunity may apply if true policy decision

**Canadian Approach**: Narrower immunity than UK Anns/Cooper Stage 2 policy defence; Canadian courts reluctant to grant broad immunity to public bodies.

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### 2.6 Psychiatric Harm and Secondary Victims

**Primary Victim**: Claimant injured in person or within zone of danger. Recovers damages for psychiatric harm if foreseeable.

**Secondary Victim**: Bystander or rescuer witnessing harm to others. Must satisfy:
1. Close temporal and spatial proximity to the accident
2. Close relationship to person injured
3. Shock from witnessing, not mere grief/distress
4. Foreseeable psychiatric harm

**Rescuers**: May recover for injury incurred rescuing others if rescue was foreseeable and reasonably undertaken.

**Limitation**: Policy generally prevents recovery for pure grief or loss of companionship without psychiatric injury.

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### 2.7 Pure Economic Loss: Negligent Misstatement

**General Rule**: No liability for pure economic loss (loss not flowing from property damage or personal injury).

**Exception — Negligent Misstatement**: Liability if:
1. Defendant made statement in professional context
2. Claimant relied on statement
3. Reliance was foreseeable
4. Defendant owed duty of care

**Hedley Byrne & Co v Heller & Partners Ltd** [1964] AC 465 (UK, adopted in Canada): Bank letter of credit reference created duty because parties knew reference would be relied upon for credit decision.

**Canadian Refinement**: Duty extends beyond "special relationships" (accountants, lawyers, surveyors) if circumstances show defendant assumed responsibility.

**Relational Loss**: Claimant suing for economic loss caused by negligent injury to third party. Generally NOT recoverable unless specific relationship creates duty (e.g., employer for injured employee's loss of earnings where claim against tortfeasor fails).

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## Part 3: Negligence — Breach, Causation & Damages

### 3.1 Standard of Care

**Objective Standard**: Conduct of a reasonable person in similar circumstances. Factors:
- Gravity of potential harm
- Likelihood of harm
- Burden of precautions
- Defendant's knowledge and expertise

**Professional Standard**: 
- Professionals judged by standard of competent professional in that field
- Must maintain knowledge of contemporary professional practice
- Error of judgment within acceptable range is not negligence (even if wrong decision with hindsight)

**Children**: Standard adjusted downward; child judged by standard of reasonably careful child of same age.

**Learned Professions**: Lawyer, doctor, engineer, surveyor—judged by standard of competent practitioner. Courts defer to professional judgment absent gross deviation.

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### 3.2 Causation: But-For Test and Hanke v Resurfice Material Contribution

**But-For Test**: Negligence caused damage if, on balance of probabilities, damage would not have occurred but for the breach.

**Hanke v Resurfice Corp** [2007] SCC 7 reformed Canadian causation law:

**Problem**: In cases where multiple causes equally contributed (e.g., two fires, either alone sufficient to burn building), but-for test fails because removal of one does not remove causation.

**Canadian Solution (Hanke)**: 
- Apply but-for test as primary test
- If but-for test fails *and* circumstances are "exceptional" (multiple independent sufficient causes, scientific indeterminacy, etc.), alternative test applies:
  - Did defendant's negligence materially contribute to injury? (Lower threshold than but-for)
  - This material contribution test applies only where but-for test is inapplicable due to evidential or scientific indeterminacy

**Significance**: Hanke is uniquely Canadian; UK courts still apply pure but-for; US jurisdictions split. Must distinguish from UK law.

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### 3.3 Remoteness / Reasonable Foreseeability

**Test**: Damage is not too remote if it was a reasonably foreseeable consequence of the breach, even if precise manner or extent unforeseeable.

**Hughes v Lord Advocate** [1947] AC 839: Damage need not occur in foreseeable manner if it flows from foreseeable risk.

**Canadian Application**: Courts liberal in finding foreseeability where general type of harm foreseeable. Policy: negligent actor should bear cost of unforeseeable variations in extent/manner of foreseeable harm.

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### 3.4 Thin Skull / Crumbling Skull Rules

**Thin Skull Rule**: Defendant takes victim as found. If victim has pre-existing condition making them unusually vulnerable to injury, defendant liable for full extent of injury, even if ordinary person would suffer less harm.

*Example*: Negligent bump to back injures pre-existing weak spine; defendant liable for full spinal injury even though ordinary person would suffer minor bruising.

**Crumbling Skull Rule** (Canadian refinement): Where pre-existing condition would have deteriorated even without tort, damages reduced to reflect only acceleration/worsening caused by tort.

**Distinction**: Thin skull applies to unexpected sensitivity to injury; crumbling skull applies where pre-existing condition would have worsened anyway.

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### 3.5 Damages: General, Special, Aggravated, Punitive; Andrews Trilogy Caps

**Special Damages**: Quantifiable economic loss (medical expenses, lost wages, repair costs). Claimant must prove actual loss.

**General Damages**: Non-pecuniary loss (pain and suffering, loss of amenity, loss of life expectancy).

**Andrews Trilogy** (*Andrews v Grand & Toy Alberta Ltd.* [1978] 2 SCR 287; *Thornton v Board of School Trustees of School District No. 57* [1978] 2 SCR 267; *Arnold v Teno* [1978] 2 SCR 287) established:
- **Indexation**: Non-pecuniary damages indexed annually to inflation
- **Cap**: Non-pecuniary cap set at approximately CAD $100,000 (1978 dollars), indexed to present day (~CAD $480,000 in 2026)
- **Functional Approach**: Damages assessed by loss of function, not by injury type

**Aggravated Damages**: Enhanced compensatory damages for conduct of defendant increasing claimant's distress (e.g., negligent handling of claim, dismissive conduct toward injured party).

**Punitive Damages**: Additional damages to punish defendant and deter similar conduct. Available in:
- Intentional torts with outrageous conduct
- Gross negligence with malice or recklessness
- Rare in ordinary negligence; high threshold

**Structured Settlements**: Damages paid as annuity rather than lump sum (tax-advantaged in Canada).

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## Part 4: Defences to Negligence

### 4.1 Contributory Negligence and Apportionment

**Provincial Statutes**: Each province has Negligence Act or Tort-feasors Act:
- Ontario: *Negligence Act* RSO 1990 c N.1
- British Columbia: *Negligence Act* RSBC 1996 c 333
- Alberta: *Tort-feasors Act* RSA 2000 c T-5
- Manitoba, Saskatchewan: Similar statutes

**Effect**: Abolished complete bar for contributory negligence. Instead, damages apportioned by degree of fault.

**Test**: Claimant's negligence must be:
1. Breach of duty owed to self or others
2. Causally connected to injury
3. Proven on balance of probabilities

**Apportionment**: Court assesses fault percentage and reduces claimant's recovery accordingly. Joint and several liability preserved (in most provinces) so claimant recovers full amount from any defendant, who then seeks contribution from co-defendants.

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### 4.2 Volenti non fit injuria (Consent/Assumption of Risk)

**Principle**: Claimant who voluntarily assumes risk of injury cannot recover.

**Modern Test**: Defence succeeds only if:
1. Claimant knew of the risk
2. Claimant understood the risk
3. Claimant voluntarily accepted the risk

**High Bar**: Courts construe narrowly. Mere knowledge + absence of express refusal insufficient; must affirmatively accept risk.

**Sports**: Athletes impliedly assume ordinary risks of the sport but not reckless conduct by others.

**Employment**: Employee does not assume risk of employer's negligence merely by accepting employment.

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### 4.3 Ex Turpi Causa (Illegality Defence)

**Principle**: Claimant engaged in illegal conduct; recovery barred if allowing recovery would violate public policy.

**Canadian Test** (evolving):
- Does allowing recovery undermine the purpose of law violated?
- Is connection between illegality and injury direct or remote?
- What is the relative blameworthiness of parties?

**Trend**: Canadian courts narrowing this defence; illegality alone insufficient. Must show direct conflict with public policy.

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### 4.4 Limitation Periods

**Provincial Variation**:
- Ontario: 2 years from discovery (subject to 15-year longstop in some cases)
- BC: 2 years from discovery
- Alberta: 2 years from discovery
- Saskatchewan, Manitoba: Similar provisions

**Discovery Rule**: Limitation period begins when claimant knew or ought to have known of injury and its cause.

**Minors**: Limitation period suspended; runs from age of majority (18 in most provinces).

**Long-Tail Claims**: Latent injuries (e.g., asbestos, environmental contamination) may have extended periods under discovery rule or statutory longstop exceptions.

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## Part 5: Strict Liability, Nuisance & Vicarious Liability

### 5.1 Rylands v Fletcher — Non-Natural Use

**Rylands v Fletcher** [1865] 3 H&C 330, affirmed (1868) LR 3 HL 330 (UK House of Lords, adopted in Canada):

*"The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape."*

**Elements**:
1. Defendant brought onto land something dangerous/likely to cause mischief
2. Defendant kept it there for own purposes
3. Escape of the thing
4. Natural and foreseeable consequence

**Non-Natural Use Test**: Originally "non-natural use" (strict liability only for abnormal uses). Modern Canadian courts restrict Rylands to activities genuinely abnormal for the location/time.

**Canadian Reception**: Adopted but narrowly applied. Modern Canadian courts prefer negligence-based liability; Rylands reserved for truly exceptional cases (e.g., blast damage from mining, escaping toxic substances).

**Defences**: Act of God, claimant's own act, statutory authority, consent.

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### 5.2 Private and Public Nuisance

**Private Nuisance**: Unreasonable use of land causing material injury to neighboring land or its use/enjoyment.

**Elements**:
1. Defendant's conduct on land
2. Unreasonable (balancing utility of conduct vs. gravity of harm)
3. Materially interferes with claimant's land use/enjoyment
4. Caused by defendant

**Remedies**: Damages, injunction (mandatory to abate or prohibitive to prevent continuation)

**Defences**: Prescription (long use establishes right), statutory authority, consent

**Public Nuisance**: Conduct affecting rights of general public (e.g., obstructing public highway, creating public health hazard).

**Standing**: Claimant must suffer special damage beyond that suffered by general public to sue.

**Overlap with Negligence**: Modern trend blurs nuisance and negligence; many cases could be pleaded either way.

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### 5.3 Vicarious Liability: Employee Tests; Non-Delegable Duty

**Vicarious Liability Test**: Employer liable for negligence of employee if:
1. Defendant-employer in position of control over employee
2. Employee's wrongful conduct connected to employment
3. Sufficient nexus between employment and tort (not merely happening during employment)

**Canadian Test** (*Hanson v Waller* 1888; refined in modern cases): Focus on whether wrongdoing sufficiently connected to role, duties, and circumstances of employment.

**Non-Delegable Duty**: Some duties cannot be delegated; employer remains liable even if work contracted to independent contractor. Examples:
- Duty to maintain safe workplace
- Duty regarding hazardous activities
- Duty to invitees on premises

**Distinction**: Independent contractor = no vicarious liability (but non-delegable duties persist). Employee = vicarious liability applies.

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### 5.4 Products Liability

**Canadian Approach**: No strict products liability statute. Recovery based on:
1. **Negligence**: Manufacturer negligent in design, manufacture, or warnings
2. **Breach of Warranty**: Fitness for purpose (Sale of Goods Act)
3. **Misrepresentation**: False statements about product

**Due Diligence Defence**: Manufacturer not liable if exercised reasonable care to design safely, test product, and provide warnings.

**Warnings**: Duty to warn of known hazards. Warning must be:
- Adequate (convey risk clearly)
- Conspicuous (noticeable location, font, color)
- Accessible (to end user, not hidden in small print)

**Defects**: Design defect (inherently unsafe design), manufacturing defect (departure from safe design), failure to warn.

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## Comparative: Canadian vs. UK Duty Tests

| Factor | Canada (Anns/Cooper) | UK (Caparo) |
|--------|-----|-----|
| Test | Two-stage: Proximity + Policy | Three-stage: Foreseeability + Proximity + Fairness |
| Foreseeability | Necessary but not sufficient | Required but secondary to proximity |
| Policy Analysis | Explicit stage 2 | Integrated into fairness |
| Application | More expansive; policy often permits duty | More restrictive; policy favors narrow duties |
| Precedent Example | *Childs v Desormeaux* (social hosts NOT liable) | *Kent v Griffiths* (ambulance service liable) |

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## Framework Checklist: Negligence IRAC

**Issue**: Is defendant liable in negligence to claimant?

**Rule**:
1. **Duty of Care** (Anns/Cooper test):
   - Stage 1: Proximity? (Foreseeability + relationship)
   - Stage 2: Policy permits duty? (Alternative remedies, indeterminacy, fair allocation)
2. **Breach**: Did defendant fall below standard of care (reasonable person test)?
3. **Causation**: But-for test (or material contribution if exceptional)?
4. **Remoteness**: Reasonably foreseeable damage?
5. **Defences**: Contributory negligence, volenti, ex turpi causa, limitation?
6. **Damages**: General (capped ~CAD $480k), special, aggravated, punitive (rare)?

**Application**: Apply facts to each element. Note jurisdiction (Ontario, BC, etc.) for contributory negligence statute.

**Conclusion**: State degree of liability, apportionment, and quantum.

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**Note**: These notes synthesize Canadian common law torts as of June 2026. Exam answers must cite specific cases and distinguish UK law (e.g., reject Caparo; use Anns/Cooper). NCA essays emphasize framework accuracy and policy sensitivity.