NCA Torts

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

# NCA Torts Study Notes — Grounded Canadian Cases

## Part 1: Negligence (35% weight)

### Duty of Care — Neighbour Principle, Caparo, Anns/Cooper

**Foundational Principle:** The neighbour principle, established in *Donoghue v Stevenson* [1932] AC 562, underpins all Canadian duty of care analysis. Lord Atkin held: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

**Canadian Framework — Cooper v Hobart Test:** Canada does NOT adopt the English Caparo three-stage test. Instead, Canadian courts apply the **Anns/Cooper two-stage framework** (Cooper v Hobart, 2001 SCC 79, [2001] 3 SCR 537):

1. **Stage 1 — Foreseeability + Proximity:** Was the harm reasonably foreseeable, AND was there a relationship of sufficient proximity having regard to:
   - Expectations and representations
   - Reliance
   - Statutory framework
   - Interests engaged

2. **Stage 2 — Residual Policy:** Even if proximity is found, do residual policy considerations (e.g., indeterminate liability, conflict with statutory duty) negate the duty?

**Application — Cooper v Hobart Facts:** Eron Mortgage investors sued the BC Registrar of Mortgage Brokers for negligence in failing to supervise, alleging the Registrar should have intervened. The SCC held NO duty: there was no proximity (no representation made to investors, no reliance) and policy considerations (indeterminate liability to all investors, conflict with the regulator's duty to the public) negated any duty.

**Critical Distinction — Anns v Merton LBC:** The English House of Lords two-stage test in Anns [1978] AC 728 was adopted in Canada but later abandoned in England in favour of Caparo. Canada retained and refined the Anns test; Cooper modified it to make proximity explicit and add residual policy at Stage 2.

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### Standard of Care and Breach

**The Test:** Once a duty of care is established, the standard of care is objective: would a reasonable person in the defendant's position have foreseen the risk and taken precautions to guard against it?

**Key Principle — Foreseeability in an Ordinary Person:** The law applies a standard of ordinary fortitude. In **Mustapha v. Culligan of Canada Ltd.** (2008 SCC 27, [2008] 2 SCR 114), the Supreme Court held that for psychiatric injury to be actionable, it must be reasonably foreseeable in a **person of ordinary fortitude**, not in the hypersensitive plaintiff.

**Mustapha Facts:** Mustapha discovered a dead fly in an unopened bottle of Culligan-supplied water. He developed major depressive disorder. The Court held no liability because such psychiatric injury was not reasonably foreseeable in a person of ordinary fortitude. Once the foreseeability threshold is crossed, however, the thin-skull rule applies and the defendant takes the plaintiff as found.

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### Causation — But-For Test, Material Contribution, Remoteness

**But-For Test:** The plaintiff must prove, on the balance of probabilities, that but for the defendant's breach, the injury would not have occurred.

**Material Contribution Doctrine:** Where multiple tortfeasors create indivisible injury or where precise causation cannot be proved, courts may accept a material contribution to the injury rather than strict but-for causation.

**Foreseeability as a Remoteness Limit:** Harm that is not reasonably foreseeable is too remote and unrecoverable. (This was central to Mustapha.)

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### Damages Assessment

**General Damages:** Non-pecuniary loss (pain, suffering, loss of amenity, emotional distress).

**Special Damages:** Pecuniary loss (medical costs, loss of earnings, rehabilitation).

**Mitigation Duty:** The plaintiff must take reasonable steps to minimize losses.

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### Special Duty Situations — Public Authorities, Omissions, Rescuers

**Public Authorities:** Cooper v Hobart confirms that regulators have no private-law duty of care to investors. Their duty is to the public under statute, not to individual private parties.

**Omissions:** There is generally no positive duty to rescue or prevent harm caused by a third party, unless the defendant has created the risk or undertaken responsibility. (*Childs v. Desormeaux*, 2006 SCC 18.)

**Rescuers:** Established Canadian doctrine recognizes a duty to rescuers injured in the course of rescue if the rescue was foreseeable.

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## Part 2: Intentional Torts (25% weight)

### Defamation — Libel, Slander, Defences

**Definition:** A false statement that damages reputation, communicated to a third party, by a person who either knew it was false or was reckless as to falsity.

**Libel vs. Slander:** Libel is written/permanent; slander is oral/transient. In Canadian law, the distinction remains important for damages presumption, but the trend is toward a unified tort.

**Defences — Justification, Fair Comment, Qualified Privilege:**

1. **Justification (Truth):** If the defendant proves the statement is substantially true, the action fails. (*Hill v. Church of Scientology of Toronto*, [1995] 2 SCR 1130.)

2. **Fair Comment:** A comment on matters of public interest may be defended if (a) it is based on true facts, (b) it is recognizable as opinion (not fact), and (c) it is not motivated by malice.

3. **Qualified Privilege:** A statement made in good faith on subjects in which the publisher has an interest or duty is privileged, unless the plaintiff proves malice (reckless disregard for truth).

**Hill v. Church of Scientology — Charter Values:** Hill, a Crown attorney, was defamed by the Church of Scientology in a press conference falsely alleging he misled a court. He sued and won. The SCC held that Canadian common law of defamation does NOT import the US *Sullivan* "actual malice" standard. Charter values inform the development of the common law, but the common law already balances reputation and free expression fairly. No restructuring is required.

**Grant v. Torstar Corp.** (2009 SCC 61) extended the framework by recognizing a defence of "responsible communication on matters of public interest" for media defendants.

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### Battery, Assault, False Imprisonment

**Battery:** Intentional, non-consensual physical contact that harms or offends.

**Assault:** An act that causes the plaintiff to apprehend immediate harmful or offensive contact, with the defendant having intent to cause such apprehension or knowledge that it will result.

**False Imprisonment:** Intentional and unlawful restraint of the plaintiff's liberty of movement without lawful justification.

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### Trespass to Land and Chattels

**Trespass to Land:** Intentional entry onto the land of another without permission.

**Trespass to Chattels:** Intentional interference with another's personal property (possession or use).

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### Privacy Torts — Intrusion, Appropriation

**Intrusion on Seclusion:** Intentional intrusion (physical or otherwise) into a zone of personal privacy.

**Appropriation of Name/Likeness:** Unauthorized use of a person's name, likeness, or identity for commercial gain.

**Note:** The Supreme Court has recognized a privacy tort in Canadian law (*Jones v. Tsige* is cited in doctrine but not in the database with full brief). Privacy tort development is distinctly Canadian.

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## Part 3: Strict Liability (10% weight)

### Rylands v Fletcher — Non-Natural Use, Escape

**Rule:** The occupier of land is strictly liable (without proof of negligence) for the escape of dangerous things brought on the land for a non-natural use.

**Key Elements:**
1. Land use is non-natural (extraordinary, not ordinary domestic use)
2. Dangerous thing escapes from the land
3. Escape causes foreseeable harm to land or chattels of another

**Provincial Variation:** The reception of Rylands v Fletcher varies by Canadian province. Some provinces have codified it in statute; others apply it subject to defences and policy limits.

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### Products Liability

**Manufacturer's Duty:** A manufacturer owes a duty to take reasonable care that products are safe for the end consumer. (Founded in *Donoghue v Stevenson*.)

**Consumer Protection:** Provincial statutes often impose warranty and liability regimes on manufacturers.

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## Part 4: Professional Negligence and Economic Loss (15% weight)

### Negligent Misstatement — Hedley Byrne Special Relationship, Reliance

**The Hedley Byrne Rule:** A party may owe a duty of care for pure economic loss if there is a special relationship: the defendant has knowledge of the plaintiff's reliance on the defendant's skill/judgment in the matter, and the defendant knew or ought to have known that the plaintiff would rely.

**Application:** This rule applies to lawyers, accountants, surveyors, and advisors who provide information or opinions in a professional capacity.

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### Professional Negligence (Lawyers, Doctors, Accountants)

**Standard:** A professional owes a duty to exercise the skill and care of a reasonably competent member of the profession.

**Causation:** The plaintiff must prove that but for the breach, the injury would not have occurred. (In legal negligence, the plaintiff must prove they would have succeeded in the underlying action but for the lawyer's breach.)

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### Pure Economic Loss — Murphy v Brentwood Limits

**General Rule:** Pure economic loss (loss unconnected to personal injury or property damage) is not recoverable in negligence unless there is a special relationship (Hedley Byrne type).

**Murphy v Brentwood Principle:** A purchaser of a defective building cannot recover pure economic loss from the local authority that negligently inspected it, absent a special relationship or statutory duty.

**Canadian Reception:** Canada applies the pure economic loss principle but with some doctrinal flexibility on special relationships.

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## Part 5: Nuisance (8% weight)

### Private Nuisance — Unreasonable Interference, Remedies

**Definition:** Unreasonable and substantial interference with the use and enjoyment of land.

**Key Factors:**
- Duration and frequency of interference
- Nature of the locality
- Sensitivity of the plaintiff
- Social value of the defendant's activity
- Feasibility of mitigation

**Remedies:**
- Damages (general or special)
- Injunction (to cease the nuisance)
- Order to abate

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### Public Nuisance — Special Damage Rule

**Definition:** An unlawful act or omission that affects the public or a class of the public and materially differs in kind from one affecting a private individual.

**Private Action:** A private individual may sue for public nuisance only if they suffer special damage (damage different in kind from that suffered by the public generally).

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## Part 6: Defences (12% weight)

### Contributory Negligence / Apportionment — Provincial Statutes

**Legislative Framework:** Each Canadian province has a Negligence Act or Tortfeasors Act that codifies contributory negligence and apportionment.

**Key Examples:**
- Ontario: *Negligence Act*, RSO 1990 c N.1
- British Columbia: *Negligence Act*, RSBC 1996 c 333
- Saskatchewan: *Tortfeasors Act*, RSS 1978 c T-18

**Principle:** Where the plaintiff is partly at fault, their recovery is reduced in proportion to their fault. A plaintiff may recover even if 99% at fault, subject to apportionment.

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### Volenti Non Fit Injuria / Assumption of Risk

**Definition:** No harm comes to one who consents. The plaintiff has voluntarily assumed the risk of the harm.

**Strict Test:** Consent is not easily inferred. It requires (a) knowledge of the risk, (b) appreciation of the risk, and (c) voluntary assumption (not merely recklessness or negligence).

**Application:** This defence is rarely successful; contributory negligence is favoured over volenti.

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### Ex Turpi Causa

**Principle:** A person who relies on their own illegal act to found a claim may be barred from recovery if the illegality is serious (ex turpi causa — out of a shameful cause).

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### Consent (Intentional Torts)

**Definition:** Valid consent requires understanding of the nature and consequences of the contact and capacity to consent (not obtained by fraud or duress).

**Medical Context:** Informed consent to treatment must be based on full disclosure of risks and alternatives.

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## Part 7: Vicarious Liability (5% weight)

### Employer-Employee Relationship, Course of Employment

**Definition:** An employer is vicariously liable for the torts of an employee committed in the course of employment.

**Key Elements:**
1. Relationship of employment
2. Tort committed in the course of employment
3. Sufficient connection between employment and tort

**Modern Test:** The connection is loose; even where the employee acts against instructions, if the tort is a mode of doing authorized work, liability may attach.

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### Non-Delegable Duties

**Principle:** Certain duties (e.g., duties to workers on site, occupiers' liability) cannot be delegated. The principal remains liable even if an independent contractor is engaged.

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## Summary of Key Canadian Cases for NCA Torts

| Case | Citation | Topic | Key Holding |
|------|----------|-------|-------------|
| *Donoghue v Stevenson* | [1932] AC 562 | Duty of care | Neighbour principle: manufacturer owes duty to ultimate consumer |
| *Anns v Merton LBC* | [1978] AC 728 | Duty of care | Two-stage test (adopted, then modified in Canada) |
| *Cooper v Hobart* | 2001 SCC 79 | Duty of care | Anns/Cooper test: foreseeability + proximity, then policy |
| *Mustapha v Culligan* | 2008 SCC 27 | Psychiatric injury | Injury must be foreseeable in person of ordinary fortitude |
| *Childs v Desormeaux* | 2006 SCC 18 | Social host liability | No duty of social hosts absent special relationship |
| *Hill v Church of Scientology* | [1995] 2 SCR 1130 | Defamation | No Sullivan rule in Canada; Charter values inform but do not displace common law |
| *Grant v Torstar Corp.* | 2009 SCC 61 | Defamation / media | Responsible communication defence on matters of public interest |
| *Jordan House Ltd v Menow* | [1974] SCR 239 | Occupiers' liability | Occupier's duty to intoxicated guest |
| *Ter Neuzen v Korn* | [1995] 3 SCR 674 | Professional negligence | Physician's duty to patient |

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**PREPARATION NOTE FOR EXAM:**
- This is an **open-book exam**. Print these notes and organize by topic for quick reference.
- Focus on the **Anns/Cooper two-stage test**; it is the foundation of all Canadian duty of care analysis.
- Memorize the leading SCC cases: Cooper, Mustapha, Childs, Hill, Grant, Jordan House.
- Provincial statutes on contributory negligence are crucial; know the Ontario and BC versions if studying for those provinces.
- The NCA syllabus lists authorities by name; cite them directly, and apply to facts using IRAC structure.