- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
H. Governmental liability
In the early common law, the government or Crown was immune from all tort liability. This was reflected in the maxim that "the King can do no wrong." Eventually a special procedure known as a Petition of Right was used to bring tort actions against the government. Today, federal and provincial legislation have removed the procedural obstacles against bringing tort actions against the government. [Note 122: See Canada Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50; Alberta Proceedings Against the Crown Act, R.S.A. 1980, c. P-18; British Columbia Crown Proceeding Act, R.S.B.C. 1996, c. 89; Manitoba The Proceedings Against the Crown Act, R.S.M. 1987, c.P140; New Brunswick Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18; Newfoundland Proceedings Against the Crown Act, R.S.N. 1990, c. P-26; Nova Scotia Proceedings Against the Crown Act, R.S.N.S. 1989, c. 360; Prince Edward Island Crown Proceedings Act, R.S.P.E.I. 1988, c. C-32; Ontario Proceedings Against the Crown Act, R.S.O. 1990, c. P.27; and Saskatchewan The Proceedings Against the Crown Act, R.S.S. 1978, c. P-27.] The legislation recognizes that governments are liable for the torts committed by its officers, employees, and agents. Nevertheless, special care must be taken when suing governments. The pertinent enabling legislation must be addressed, its conditions must be complied with, and other related legislation may impose special procedural rules relating to limitation periods or the giving of notice before commencing an action. Moreover, the removal of procedural obstacles against bringing tort actions against the government has ironically led to the introduction of some common law protections and limitations on governmental liability in negligence. The courts have been particularly concerned about the need to control the extent of governmental liability in negligence for losses caused by the exercise of governmental powers.
Before we address the issue of governmental liability in negligence, it is useful and convenient to make some preliminary reference to the special rules relating to liability for corrupt governmental practices.
1) Corruption and Negligence
Canada is not plagued by the public corruption that is commonplace in some countries. Canada's public servants and officials may make occasional mistakes and blunders and from time to time they may be negligent but in general they are honest. Consequently, there are very few cases dealing with the corrupt acts of public officials. Most of the litigation centres on allegations of negligence. Nevertheless, the tort liability for damage caused by the dishonest or corrupt actions of unscrupulous public officials is well established. The applicable tort is that of misfeasance of public office. [Note 123: See J. McBride, "Damages as a Remedy for Unlawful Administrative Action" (1979) 38 Cambridge L.J. 323.] Two kinds of wrongdoing are caught by this tort. The first deals with the abuse of power that the public official actually possesses and the second deals with conduct that is knowingly beyond the power or jurisdiction of the public official.
The first situation is commonly referred to as the abuse of statutory powers. It arises most commonly where a public official knowingly exercises a statutory power for the improper purpose of injuring or punishing the plaintiff. This is known as targeted malice. The classic Canadian example is Roncarelli v. Duplessis. [Note 124: [1959] S.C.R. 121.] In that case, the plaintiff's liquor licence was cancelled at the direction of the premier of Quebec in order to punish the plaintiff for providing bail money to fellow members of the Jehovah's Witness faith who had been charged with offences relating to the distribution of their religious literature. The defendant was held liable for the malicious abuse of statutory powers. Liability may also be imposed where a power has been exercised for other improper purposes, such as for personal gain or to benefit a third party, provided that the official knows that the plaintiff will suffer harm or is recklessly indifferent to such an outcome.
The second situation, where an official acts outside her jurisdiction, does not require the proof of malice. Liability is imposed for the knowing usurpation of power rather than the abuse of power. The plaintiff must prove that the public official knew that she had no authority to act and knew that the plaintiff would suffer harm or was recklessly indifferent to that result. [Note 125: See Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food (1985), [1986] Q.B. 716 (C.A.); Gerrard v. Manitoba (1992), 98 D.L.R. (4th) 167 (Man. C.A.); Odhavji Estate v. Toronto (Metropolitan) Police Force, [1998] O.J. No. 5426 (Gen. Div.) (QL); Alberta (Minister of Public Works, Supply & Services) v. Nilsson, [1999] 9 W.W.R. 203 (Alta. Q.B.); and First National Properties Ltd. v. Highlands (District of) (1999), 178 D.L.R. (4th) 505 (B.C.S.C.).]
The scope of the tort of misfeasance of public office is deliberately narrow. It is designed to target only "the deliberate and dishonest abuse of power." [Note 126: Three Rivers District Council v. Bank of England (No. 4), [1998] E.W.J. No. 4042 (C.A.) (QL) at para. 227.] There is, for example, no liability merely because a bona fide administrative act is later found to be unlawful. Public officials are also free to make good-faith discretionary decisions free from the anxiety of tort liability. The tort of misfeasance of public office may, however, in appropriate cases, be complemented by other torts, such as malicious prosecution, fraud, conspiracy, and intimidation, which also provide protection against the dishonest and deliberate wrongdoing of public officials.
Tort law has a limited power to address judicial corruption. The interest of society in an independent and fearless judiciary generally outweighs competing interests of individual litigants. Judges enjoy a generous judicial immunity from tort liability. There is a complete immunity in respect of all judicial acts done within the court's jurisdiction, and it probably extends to acts beyond the court's jurisdiction where the judge has an honest belief that the act was within the court's jurisdiction. [Note 127: Sirros v. Moore (1974), [1975] 1 Q. B. 118 (C.A.).] Liability is only likely where a judge acts knowingly in excess of jurisdiction and with malice, a most improbable situation. The matter is, however, complicated by some uncertainty as to the meaning of jurisdiction, the relevance of the level of the court, and legislative protections. The lack of a private tort remedy does not, of course, indicate any indulgence of judicial wrongdoing. Judicial councils act as the watchdogs on judicial conduct and judges can be removed from office for serious wrongdoing.