Confidential

The Triumphs and Trials of Canadian Tort Law

The Honourable Mr. Justice Allen M. Linden Federal Court of Appeal

To be delivered to the Canadian Bar Association, Calgary, Alberta, August 14, 2007

TORTS PAPER Draft #13 July 31, 2007

Introduction

The third third of the 20th century was the Golden Era of Canadian Tort Law.

Awakening from its slumber during the first two thirds of the century, the Dark Ages of

Canadian Tort Law, Canadian tort law experienced a renaissance and rose to triumphant

new heights, arguably better than has been achieved anywhere else in the world1.

Lewis Klar, in his article for the 125th anniversary of the Supreme Court2 opined that

there is little doubt that the Supreme Court of Canada has been the most bold,

imaginative and adventuresome high court in the common law world. At the turn of the

century, Canadian tort law was rational, humane, balanced and truly Canadian, reflecting

our unique culture and values, a source of pride for all of us engaged in tort litigation and

scholarship.

After the turn of the century, however, things have begun to change for Canadian

tort law, as they have since 9/11 for most other areas of law and life. Canadian tort law,

like the rest of the world, is undergoing some trials, some tribulations, and some troubles.

Without expressly articulating its hostility to tort laws growing influence, the Supreme

Court of Canadas recent decisions have shown that it has lost its creativity, its

exuberance, its confidence in tort law. After a brief, brave and stout resistance, it has

chosen finally to follow the British and Australian tort courts in their retreat two decades

ago. While its work in other areas of law remains superb, particularly constitutional, 1 See Cooper-Stephenson, in the Beaulac et al, Joy of Torts (2003) at p. 5. 2 Klar, Judicial Activism in Private Law (2001), 80 Can. Bar Rev. 215

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criminal and intellectual property law, the Supreme Courts tort decisions have faltered,

foundered and faded. While supposedly seeking rationality and clarity, the Court has,

perhaps unwittingly, downsized and weakened tort law, rendering it as complex as tax

law and constitutional law. The clarity it sought has eluded us. And the humanity and

balance of yesteryear is fading fast.

Some might speculate that this development may have been a perhaps

subconscious response by the Court to some earlier problems emanating from some

troubling U.S. developments in tort law, but not present at all in Canada. Others might

say that the powerful pull of British Judicial Colonialism was just too much to withstand

forever. Still others might wonder whether the Court was responding to the gentle

scolding administered by Professor Klar in his anniversary paper for energetic, judicial

activism and for relying too much on policy and matters of social and economic

consequences rather than judicial precedent and legal principle.3

Let me briefly trace the triumphant history of Canadian tort law over the last third

of the last Century and then contrast that with its more troubling direction in this new

Century. I shall conclude by describing my dream for a new Platinum Age for Canadian

tort law that is caring, rational, balanced, responsible, and efficient, which would

continue to reflect our national character and values.

3 Ibid at p. 216

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Some Recent History

When I first studied tort law in 1956, more than half a Century ago, it was not in

very good shape. Indeed, one might say there really was no Canadian tort law. The

leading decisions were almost all British. There were no Canadian tort law textbooks,

our courts relying almost exclusively on the British texts Salmond, Winfield, Pollock,

Clerk & Lindsell. There was only scant research and scholarship in the Canadian law

journals, save for the work of Dean C.A. Wright, the father of Canadian tort law, whose

torts casebook4 began the process of creating a more vibrant and independent Canadian

tort law. The lot of a tort claimant was not a happy one. Nor was the life of a tort lawyer

an honoured or lucrative one. For car accident victims the pursuit of compensation was

tough; there was no compulsory insurance law; guest passenger laws denied any recovery

to the injured passengers against their negligent drivers. Various immunities blocked tort

recoveries family, charities, governmental. Occupiers liability law was encrusted with

technical categories making it difficult to recover. Product liability and medical

malpractice cases were almost unheard of. Limitation periods were short and strictly

enforced. And if liability was occasionally found, the damages awarded were very low. I

can remember the celebrations in the offices of plaintiffs lawyers when the first

$100,000 award was achieved in the late 1950s for a person rendered a paraplegic. Tort

law and tort law practice was a backwater area in Canada, offering little or no help to the

victims of accidents and with little or no appeal to talented young lawyers, who did not

want to be called ambulance chasers, especially when they could not earn a decent

living representing the injured. Remember also that we had no hospital or medical

4 Cases on the Law of Torts (1954)

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insurance in those days and the Canada Pension Plan was not even a gleam in any

politicians eyes. It was truly a Dark Age for Canadian tort law.

Triumph

Beginning in early 1970s, as most of the world enjoyed peace and prosperity and

a flowering of human rights, Canadian tort law experienced a renaissance.5 The abolition

of Privy Council appeals increased our national pride and stimulated more independent

thinking in legal matters. The improved quality of the judicial appointments, the

enhancement of legal education and research, better trained and more creative lawyers,

more active legal organizations, the arrival of law clerks, all began to have an effect on

our jurisprudence. New law schools were established and more full-time professors were

employed, many of whom had studied in the U.S., the U.K., and other parts of the

Commonwealth. Among the torts scholars who contributed to the rise of Canadian tort

law, in addition to the pioneers, Wright, Bowker and MacIntyre, were Dunlop,

Alexander, Gray, Charles, Gibson, Lang, Smith, Fridman, Burns, Picard, Cooper-

Stephenson, Blom, Ison, Brown, Waddams, Weinrib, MacLaren, Klar, Feldthusen,

Bilson, Rafferty, Irvine, Osborne, J.-L. Baudoin in Quebec, and others. General

textbooks on Canadian tort law were finally appearing. In addition to my own, published

in 1972, there was Fridman, Klar and Osborne. A dozen or so text books on particular

subjects were also published on Nuisance, Defamation, Damages, Economic Negligence,

Products Liability, Sexual Abuse, Medical Law, Liability in Negligence, Liability of

Architects and Engineers. Law Reform Commissions were established and undertook

5 Allen Linden and Wendy Linden, see The Supreme Court of Canada and Canadian Tort Law (1970-1980 in The Supreme Court of Canada (1985)

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studies on various aspects of tort law that needed reform, as well as many other areas of

law. Many new law journals were published, often containing fresh ideas for tort

reform.6 A new and lively spirit was abroad in the land.

All of this academic activity had its beneficial effect on the quality of the

practicing bar which, in turn, with the help of their legal organizations, the C.B.A., The

Advocates Society, O.T.L.A., etc., influenced the legislatures and the judiciary, which

were becoming increasingly confident, better educated and more diverse. Soon

legislatures began to respond. The Draconian guest passenger laws were repealed. Auto

insurance was made compulsory. No-fault automobile insurance schemes were enacted

and altered and altered again; some were generous, some were more balanced, and others

were overly restrictive.7 Occupiers liability statutes were passed, abolishing the ancient,

confusing categories. Limitation periods were mollified. Class actions were allowed.

Family immunities were adjusted. New family law acts recognized damage to familial

interests in the assessment of damages. And we must pay tribute to the spectacular

achievement of a new Civil Code of Quebec, finalized in 1994, after years of gestation

and hard work by scholars and politicians of all parties.

The Canadian judiciary, encouraged by a new breed of Canadian lawyer, did its

part in rationalizing and humanizing Canadian tort doctrine. Building on the glorious

neighbour principle of Donoghue v. Stevenson, that one must take reasonable care to

avoid acts or omissions which you can reasonably foresee would be likely to injure your

6 See Footnote 6 in Joy of Torts (2003) 7 See Linden and Firestone, Butterworths, Ontario Motor Vehicle Insurance Practice Manual (looseleaf)

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neighbour, Canadian tort law, consistently with that noble principle, was substantially

overhauled and modernized. In my view, the results of these changes were neither pro-

plaintiff nor pro-defendant; they were balanced and even-handed but, most importantly,

logically and socially defensible. The reasonable man standard was dispatched to the

dust bin, a deserving victim of the womens liberation movement, to be replaced by the

neutral reasonable person standard. Rescue law was restated.8 The treatment by

negligence law of a breach of statute was clarified it was to be evidence of negligence,

no more and no less.9 Evidence of compliance with statute was also to be treated as not

conclusive evidence of reasonableness, but it was relevant to the issue.10 Custom was to

be similarly handled neither breach of custom nor compliance with custom were to be

conclusive, but they were important factors to assess.11 The Supreme Courts trilogy of

damage cases in 1978, applying a cap to non-pecuniary damages, inter alia, made the

assessment of damages more scientific and economically based, long before the U.S. ever

thought of doing this to tame their runaway damage awards.12 Punitive damages, which

were always modest in Canada, and still are, were better explained so as to avoid the

potentially exorbitant awards given in the U.S.13 The mysterious doctrine of res ipsa

loquitur expired, ending decades of sterile debate signifying nothing.14 Causation was

rethought, opened up (and perhaps closed again). Medical malpractice liability was

reconfigured, with informed consent properly situated in negligence law rather than

8 Horsley v. MacLaren (1971) 22 D.L.R. (3d) 545 9 Canada v. Saskatchewan Wheatpool (1983), 1 S.C.R. 205 10 Ryan v. Victoria (City) (1999), 44 C.C.L.T. (2d) 1, at p. 16 11 Waldick v. Malcolm, [1991] 2 S.C.R. 456 12 Teno v. Arnold , [1978] S.C.J. No. 8 13 Whiten v. Pilot Insurance (2002), 209 D.L.R. (4th) 257 (S.C.C.) 14 See Fontaine v. I.C.B.C., [1998] 1 S.C.R. 424

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battery, to be judged by the reasonable patient standard. But some problems have

lingered concerning the objective causation theory.15

Other judicial reforms were instituted. Liability for governmental negligence was

justly restated in Just v. B.C.16, but the area kept percolating despite that. Rejecting the

strict products liability revolution that swept the U.S. in the 60s, Canadian products

liability law wisely continued to be governed by negligence law. The need for explicit

warnings, however, was clarified.17 Economic losses were, after much uncertainty,

finally categorized intelligently la Dean Feldthusens work.18 Negligent statements

would expose their authors to liability if five specific requirements were present, but not

otherwise.19 Relational economic losses were limited to only a few exceptional

situations.20 Even defamation law was adjusted21, and clarified, without adopting the

U.S. constitutional immunity in relation to public figures.22 And vicarious liability law

was finally rationalized with a sensible new test and using modern language,23

employee and employer, replacing servant and master.

All of this was done gradually, incrementally if you will, in an undramatic,

balanced, analytically sound way by many great tort judges, led by C.J. Laskin, C.J.

15 See Linden, Canadian Tort Law, (8th ed. 2006) 16 [1989] 2 S.C.R. 1228 17 Hollis v. Dow Corning, [1995] 4 S.C.R. 634 18 See Economic Negligence (4th ed. 2000) 19 Hercules Management (1997), 146 D.L.R. (4th) 577; The Queen v. Cognos Inc., [1993] 1 S.C.R. 87 20 Bow Valley, [1997] 3 S.C.R. 1210 21 Botiuk, [1995] S.C.J. No. 69 22 Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 23 Bazley v. Curry, [1999] 2 S.C.R. 534; 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983

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Dickson, C.J. McLachlin, Bertha Wilson, Peter Cory, Gerald LaForest, John Sopinka,

Frank Iacobucci, John Major and other judges at all levels of courts.

The opinions of the Judges in many of these cases are imbued with the typically

Canadian spirit of caring for ones neighbours and support for responsibility. For

example, Justice Bertha Wilson in Kamloops v. Nielsen24, imposing liability on a

municipality, rejected the floodgates argument that liability would be ruinous financially

to municipalities, explaining that tort liability is a useful protection to the citizen whose

ever-increasing reliance on public officials seems to be a feature of our age. Listen to

Justice Peter Cory on the role of tort law as a sentinel of safety in Galaske v.

ODonnell25, a seat belt case:

if the fixing of liability on a driver to ensure that young passengers wear seat-belts saves one child from death or devastating injury, then all society will be benefited.

Mr. Justice Major also underscored the prophylactic aim of tort law in Stewart v.

Pettie26:

One of the primary purposes of negligence law is to enforce reasonable standards of conduct so as to prevent the creation of unreasonable foreseeable risks. In this way tort law serves as a disincentive to risk-creating behaviour.

Add to this list Justice LaForests view, as expressed in Winnipeg Condo

Corporation No. 36 v. Bird Construction Co.27:

24 [1984] 2 S.C.R. 2 25 (1994), 112 D.L.R. (4th) 109 26 [1995] 1 S.C.R. 131 27 [1995] 1 S.C.R. 85, at p. 118

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Allowing recovery against contractors in tort for the cost of repair of dangerous defects thus serves an important preventative function by encouraging socially responsible behaviour.

Canadian Judges, therefore, invoked tort law to promote safety and responsibility

in all kinds of risk-producing activities by all kinds of actors, seeing themselves as part of

the apparatus of humane safety enforcement and caring for the victims of its failure.

At the turn of the Century, our tort law was a model for the common law world,

even quoted and relied upon by the House of Lords, that proud and heretofore largely

insular body.28 Canadian tort law, was even-handed, neither too generous nor too tough.

Plaintiffs cheered some of the decisions like Just, Galaske,Kamloops, Bazley and Ryan,

while defendants were overjoyed with others, like the damages trilogy, Whiten, Hercules,

Saskatchewan Wheat Pool and Bow Valley. We torts people had reason to be proud of

what we had created together in the last third of the 20th Century.

The Current Trials of Canadian Tort Law

As the new Century began to unfold, after three decades of steady improvement,

things began to change. Canadian tort law went from being triumphant to being on trial.

The humane, rational and balanced Canadian tort law that was built over three decades is

now in trouble. It is becoming more complex and less balanced. It is no longer at the

leading edge, no longer a model to emulate. It is hard to understand why this retreat is

happening now. Some opine that it is a delayed reaction to a negative wind blowing in

28 See Lister v. Hesley Hall Ltd., [2001] 2 W.L.R. 1311 (H.L.)

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the U.S., which is unmaking tort law,29 because of unique conditions there, conditions

that never existed and do not exist in Canada. Others say the U.K. retreat finally

persuaded our Supreme Court to retreat after two decades. There has also been a change

in the membership of the Supreme Court; although still superbly qualified, they do not

seem to care as much about tort law as some of the illustrious tort judges did in days gone

by. And the times they are a-changing, with profits and bottom-line thinking

mesmerizing our society. Hobbes has replaced Rousseau as our favourite philosopher.

The entertainment industry has been an accomplice in diminishing the respect for

tort lawyers who are depicted as sleazy, unethical, alcoholic and dishonest. The movie,

Fortune Cookie, starring Walter Mathau, portrayed him as a dishonest ambulance chaser.

Liar Liar was about a lawyer who was incapable of telling the truth, The Rainmaker and

The Sweet Hereafter were about lawyers who solicited clients at hospitals, at their homes

and at funerals. The musical, Chicago, although not dealing with a tort case, showed the

trial lawyer as a magician spinning razzle-dazzle. Jerry Seinfeld did a t.v. episode

mocking the much-maligned McDonalds hot coffee case. There are books, mainly in the

U.S., which disparage all lawyers, but tort lawyers in particular, such as Grishams, The

King of Torts, Catherine Criers, The Case Against Lawyers (2002). Do not forget Isons

The Forensic Lottery and Atiyahs The Negligence Lottery. One distinguished U.S.

scholar has even written an entire book, Lowering the Bar, analyzing all the jokes

ridiculing lawyers, which make people laugh at their mercinariness, dishonesty,

aggressiveness, and general repulsiveness. Entertainment portraying lawyers in a

positive light is rare these days. 29 Feinman, Unmaking Law (2004)

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The trials of modern tort law began when the House of Lords engaged in its

retreat during Prime Minister Thatchers time in the 1980s culminating in Murphy v.

Brentwood30, which abandoned Anns v. Merton31 after only 12 years. Initially, the

Supreme Court of Canada bravely refused to follow in the retreat, remaining true to

Donoghue v. Stevensons neighbour principle as elaborated in Anns v. Merton. The cold

U.S. wind was generated by President Reagans Tort Policy Working Group (1986) and

the propaganda campaign of the American Tort Reform Association, which vigourously

publicized the excesses of the U.S. tort system, and infiltrated the Canada psyche. The

Supreme Court of Canada finally surrendered in Cooper v. Hobart (2001), adopting an

analysis of duty that resembles closely the complex and backward-moving one adopted

by the House of Lords in the late 80s, but it is even more complicated in its execution,

although more sophisticated in its treatment of policy.

In Cooper v. Hobart32 the Supreme Court unveiled a more elaborate version of the

Anns prima facie duty approach, inserting a new requirement to be considered before

creating a new tort duty proximity. In deciding whether a new category of duty should

be recognized, the Court declared that a two-step approach, as in Anns, should continue to

be used, but in which the plaintiff, in the new two-part first step, now had to demonstrate

foreseeability and proximity. In the second step, it was up to the defendant to establish

countervailing policy considerations that would negative the imposition of a new duty of

care.

30 [1990] 2 All E.R. 908 31 [1977] 2 W.L.R. 1024 32 [2001] 1 S.C.R. 643

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In adopting the new approach to establishing new duties the Supreme Court

explained that for purposes of clarity and better methodology, it had to outline what

falls to be considered at each stage of the Anns test, even though it admitted that the

concerns were academic and that it may not matter at which stage it occurs. It

opined that Cooper was merely a gloss on Donoghue v. Stevenson, which never used

the word proximity, and which is totally inconsistent with the notion of this new

element added to the first step of the duty analysis. It confirmed that the Anns approach

was still appropriate in the Canadian text but that there was doubt about which policy

considerations were to be undertaken at which stage of the analysis.

Unfortunately, the hoped-for clarity has eluded us in the aftermath of Cooper.

There was uncertainty about the categories of case that were said to be immune from the

Cooper analysis, for example, physical harm. Then there was confusion about whether

it was a two step test with a two part first step or a three part test,33 the former

winning the day eventually in Childs, after the departure of Iacobucci J., who had

developed the short lived three-step test.34 The Court at first failed to explain who bore

the onus of proof at the various stages of the analysis. One thing the Court eventually did

make clear was that the onus to show proximity was on the plaintiff now, which heralded

a major shift. Under Donoghue and Anns, reasonable foresight, which had to be proved

by the plaintiff, was enough to satisfy the first step, and then it was the defendants

obligation to offer some sound policy reason to deny the existence of a duty to act

reasonably. Now, as a result of Cooper and Childs it is up to the plaintiff to allege and

33 Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 per Iacobucci J., onus on plaintiff for all three steps, now altered 34 [2006] S.C.J. No. 18

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convince the Court, at the outset of the litigation in the pleadings, that there was

reasonable foreseeability and sufficient proximity to make it just and fair to impose on

a defendant an obligation to use reasonable care.

Cooper, perhaps unwittingly, has unleashed a force that is not only stifling the

growth of tort law it is actually shrinking its scope. Pursuant to what has been seen as a

signal from the Supreme Court for retrenchment (Klar), whether intended or not,

hundreds of motions attacking pleadings have been brought by defence counsel,

challenging law suits on the basis that their facts involve the creation of new tort duties.

It is a wonder to behold the truly amazing creativity evinced by Canadian plaintiffs

counsel - according to defence counsel who have suddenly discovered hundreds of

new tort duties. This burst of allegedly creative power by plaintiffs counsel makes the

accountants of Enron and Nortel seem remarkably unimaginative. Complimenting

plaintiffs counsel for their imaginative pleadings, defence counsel then proceed to

contend that no duty exists to act carefully in the alleged new factual circumstances of the

case, invoking the new Cooper approach - foresight, proximity, policy. Using proximity,

they are trying to bring back the old forms of action to rule us from their graves. In my

view, most of these allegedly novel categories of case are not novel at all and can easily

be fitted into the established categories (or analogous categories) listed in Cooper, for

which the new analysis is unnecessary.35

35 See for example, Haskett v. Equifax Canada, [2003] O.J. No. 771; Premakumaran v. Canada, [2007] 2 F.C.R. No. 893, Linden J.A., negligent statement case

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Following Cooper, at least at first, too many trial judges, and even some appeal

courts, have been persuaded on little evidence and weak arguments to strike out claims

prematurely, and often needlessly, ending or at least slowing down the progress of the

case, making settlements more difficult and even impossible. Courts of appeal have been

much less frequently fooled,36 many of which have engaged in serious analysis after a full

trial, but still often without sufficient evidence about the policies being relied on to deny

liability. More recently, trial judges have become less gullible and more reluctant to

dismiss cases at the outset of the litigation, insisting on a fuller factual foundation before

doing so.

In my respectful view, this new unnecessary Cooper methodology has, been a

failure, generating confusion, needless litigation and frequent injustice, without achieving

the clarity that was sought. It is unnecessarily complex and has often been used to

thwart the orderly progress of tort litigation. The concept of duty has been distorted, even

disintegrated, according to one scholar,37 sometimes wrongly treating every new fact

scenario as if there were a new duty situation present.

Remember, a holding that there is no duty owed means that the defendant is

totally immune from liability for his or her alleged negligence causing injury to the

plaintiff. Such a holding is a legal issue and can be achieved, and often has been, without

36 See Laskin J.A. in D.(B) v. Halton Childrens Aid Society (2006), 79 O.R. (3d) 45; see also Hill v. Hamilton-Wentworth Police (2005), O.J. No. 4045 McPherson J.A.; Sauer v. Canada, [2007] O.J. No. 2443 per Gonage, made cow case 37 Ernest Weinrib, The Disintegration of Duty

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a trial or even a discovery, based merely on the pleadings and some unsubstantiated

policy arguments. This is unhealthy for a just and balanced tort system.

A debate about the existence of a duty should be a relatively rare occurrence in a

negligence case, not an everyday consideration in nearly every case. The concept of duty

is a broad and general concept that enables courts to protect vital social interests by

deciding as a matter of law and policy to immunize certain activities and institutions from

negligence laws supervision. Normally, at least in physical damage cases, an actor

ordinarily has a duty to exercise reasonable care when the actors conduct poses a risk of

physical harm.38 The civil law does not contain this notion of duty at all and manages

quite well without it.

Certainly, it is permissible and sometimes necessary for a Court to determine, in

appropriate cases, that an actor owes no duty, but this should be a unusual occurrence

based on special problems of principle or policy that warrant denying liability.39

Because this is such a serious matter it should be done rarely and should not be done

without substantial evidence of the social problems caused by a departure from the

normal principles of negligence law. Justice Calabresi has written - there should be no

ad hoc no-duty decisions.40 Our procedural jurisprudence in Canada reflects this caution

when it directs that, only if it is plain and obvious that there is no duty, should the

action be struck.41

38 See Restatement, Third, Draft, s. 6 39 See Restatement, Third, Draft, s. 7 40 Stagl v. Delta Airlines (1995), 52 F. 3d 463 41 Hunt v. Carey, [1990] 2 S.C.R. 959

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Even though the Court disavowed any desire to change the results in these cases,

Professor Klar has written that Cooper was a turning point in Canadian tort law,

moving it to a more pro-defendant, conservative position. This is not necessarily a

bad thing, if that was the goal of the Supreme Court and was so expressed; but if that is

an unintended result of a purely academic exercise to clarify the analysis of duty issues

and improve the methodology, it is not a good thing. Ingenuousness is a virtue in these

matters, as in all others.

There is validity to Professor Klars view about Cooper. Compare the

neighbourly, caring spirit reflected in he late 20th century cases with the tougher, cribbed

and confined views expressed in this new Century. Like in the other areas of society, the

business-oriented, bottom-line, more selfish attitude of concern for businesses,

governments and their insurers is emerging in the tort cases, replacing the earlier concern

for victims and safety. Witness the statements in Cooper (S.C.C.) denying a quasi-

governmental regulators duty because it would no doubt come at the expense of other

important interests, of efficiency and finally at the expense of public confidence in the

system as a whole. The Court in obiter also worried about indeterminate liability and

did not want to create an insurance scheme for investors at great cost to [taxpayers].

These are certainly legitimate concerns, but they are receiving more emphasis than

heretofore. This concern for indeterminate liability and the danger of increased taxes and

insurance premiums, which are viewed by some judges as a judicially imposed tax,42 is

repeatedly voiced in many other cases at all levels as part of the rationale for holding that 42 See Spigelman, infra.

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there is no duty owed in the factual circumstances of the case, something that was rarely

expressed in the past.

In Childs v. Desormeaux,43 the Supreme Court appeared to deny any duty of

social hosts to a third party injured by the driving of an inebriated guest after the party,

and referred to the two-sided face of negligence, in that tort law considers not only the

plaintiffs loss, but also whether it is just and fair to impose the cost of that loss on the

defendant. This is obviously so, but the Court asserts that the proximity requirement

captures this [idea], giving far more importance to that new concept than it deserves. It

is all of the negligence law analysis that directs this two-sided determination:

negligence, causation, damage, conduct of the plaintiff, as well as proximity and the duty

issue of which it is a part. When the three elements are proved by the claimant damage,

causation and negligent conduct this should normally lead to liability, unless there is an

important policy or proximity reason to depart from that basic principle.

Further, the Court in Childs states that the common law is a jealous guardian of

individual autonomy, so that a host must respect the autonomy of a guest even if he or

she is a risk taker:

A person who accepts an invitation to attend a private party does not park his autonomy at the door. The guest remains responsible for his or her conduct.

Absolutely true! No one argues that inebriated guests should be relieved of their

responsibility for their negligent conduct; the issue is whether any partial responsibility 43 [2006] S.C.J. No. 18

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should also be attached to the negligent social host for enabling the guest to cause the

loss,44 in addition to the autonomous guests undoubted responsibility. As for autonomy,

maybe inebriated guests need to have their so-called autonomy to get drunk intruded

upon by responsible, reasonable, caring hosts, so that tort law might assist in reducing the

carnage on the highways, where approximately one half of the 4000 fatal accidents

annually in Canada are caused in part by drunk drivers.

Sensitive and serious Judges understand that new duties placed on governments

and businesses may be onerous. It should not be done lightly. In one case dealing with

government liability for the West Nile disease, it was said, by Justice Sharpe of the

Ontario Court of Appeal, that liability would interfere with governments decisions about

allocating scarce resources available to promote and protect the health of its citizens.

The government, he opined, should be able to focus their attention and resources without

the fear or threat of lawsuits.45 This is a legitimate concern, one that, in particular cases,

others might assess differently, but one that did not need the elaborate proximity analysis

of Cooper to effectuate. The earlier Just analysis alone could just have easily led to the

same result by treating the matter as a policy decision, and, hence, immune from

negligence liability on that ground. The attitude of some judges amazingly is that

governments, when they legislate, even wrongly, incompetently, stupidly or

44 Rabin, Enabling Torts (1999), 49 DePaul L.Rev. 435 45 See Sharpe J.A. in Eliopoulos v. Ontario, [2006] O.J. No. 4400, para. 32 & 33. See also, A.L. v. Ontario, [2006] O.J. No. 4673, para. 33.

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misguidely, are not liable in damages. Fortunately we have administrative and

constitutional law to protect us in addition to tort law.46

Needless to say, I am not a big fan of Cooper v. Hobart. Cooper should be

reconsidered at the earliest opportunity; if the Court truly did not intend to downsize tort

law, it should restate the Anns test again, suitably adjusted if necessary, so that, in

considering new duties, proof of reasonable foresight by the plaintiff would, as in the

past, meet the first step of the test. This should not be automatic but should be a real

test.47 In the second step the onus of which should rest on the defendant the policy

considerations leading to no proximity and all other policy considerations potentially

negating the duty, as well as those favouring a duty, should all be evaluated together and

a decision made not precipitately, but based on solid evidence and thorough policy

analysis, preferably after a trial on the merits, except for clear and obvious cases. That

would be a more balanced approach, reflecting our traditional values and priorities.

This Cooper spirit of retreat seemingly downsizing tort law, has been reflected in

other decisions of the Supreme Court around the turn of the Century. One of these,

before Cooper, was Dobson, (1999) when a child, injured in a car accident before it was

born, was denied the right to sue his mother for her negligence, even though she was

insured. A thoughtful policy rationale, protecting a womans autonomy and privacy, was

advanced by the majority to justify the denial of a duty on the mother, even though there

was liability insurance coverage and the mother did not want to be protected by any

46 See A.O. Farms v. Canada, [2000] F.C.J. No. 1771, quoted in [2002] B.C.J. No. 2691, affd. [2004] B.C.J. No. 306 47 See Haggith v. 33 Parliament St., [2002] O.J. No. 760

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finding of no duty. The province of Alberta has overturned by legislation, as it relates to

car accidents, this decision, following the U.K. in this regard.48 As for vicarious liability,

after the landmark decision of Bazley, which the House of Lords followed in Lister, there

was a retreat in several S.C.C. cases making it nearly impossible to hold vicariously liable

an employer in a sexual assault case by one of its employees, except in the narrowest of

circumstances.49

In the social host context, the Supreme Court in Childs needlessly constructed an

analysis that made it appear to the public, wrongly, that no social host could ever be

liable to a guest or to third persons injured by a hosts inebriated guest. The ordinary

principles of negligence law were adequate to resolve the case if there was nonfeasance,

and no special relationship with the host, no duty should be owed by the host to third

persons. However, if the host created a risk of harm by consciously offering liquor to a

drunk guest and encouraging or knowingly allowing him or her to drive home, liability

should follow, as the Supreme Court actually recognized in Childs, but which point has

not been widely noticed. Instead another complex new structure based on proximity

analysis was erected.

Now there is a new causation decision Resurfice v. Hanke50 that wrongly appears

to some, to eclipse or at least circumscribe earlier flexible decisions which rejected a

scientific precision test, preferring instead a robust and pragmatic, common sense

48 See Linden, p. 311, footnote 136 49 See ibid. at p. 556 50 [2007] S.C.C. 7

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causation test51 and a material contribution test for causation in certain circumstances.52

Again, real confusion has been caused by the apparent ambiguity (or some say flip-

flopping) of the Court on the issue. This Court understands causation very well53 and has

been a leader in causation thinking in the past, but the Hanke54 case does not reflect its

best thinking on the issue, which needs fuller treatment in the near future.

The Supreme Courts most recent foray into the Cooper analysis is immaculate,

according to the newformula. In Syl Apps Secure Treatment Centre et al v. B.D. et al55

Justice Abella, who understands this area very well, writing for a unanimous Court,

decided, in an attack on the statement of claim, that child protection agencies and social

workers working with children legally taken from their parents because they were in need

of protection owed no tort duty to the families of those children in relation to their

decisions about their custody. After mentioning Hunt v. Carey and the definitively

refined Anns test, Justice Abella held, that, although reasonable foresight was conceded,

the pleading disclosed insufficient proximity in the relationship to make it just and fair to

impose a new tort duty on the child care institution and its personnel. The deciding

factor for Justice Abella, was that, because of the adversarial situation between the

parents and the state, there existed a genuine potential for serious and significant conflict

with the service providers transcendent statutory duty to promote the best interests,

protection and well being of the children in their care. To establish a new duty would

51 Snell v. Farrell, [1990] S.C.J. No. 73 52 Walker v. York-Finch Hospital, [2001] 1 S.C.R. 2001 53 See McLachlin in Fleming, Torts Tomorrow (1998), Athey v. Leonati, [1996] S.C.J. No. 102 54 Resurfice v. Hanke, supra. 55 (2007) S.C.C. 38

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create a chilling effect on social workers, who may hesitate to act in pursuit of the

childs best interests.

A further rationale for denying the new civil duty here was the need for

confidentiality and privacy in the relationship between the child and the medical

personnel treating the child. Reinforcing the conclusion is the fact that there exists a

suitable statutory remedy in the Act for parents to challenge their childs status and

treatment every six months. Lastly, there was a statutory immunity in the Act protecting

the defendants from liability for acts done in good faith in the execution of their duty.

While I might have preferred that the case be allowed to proceed further, as did

the Ontario Court of Appeal majority, it was probably inevitable that it would ultimately

fail. As Justice Abella concluded, there was no reasonable cause of actiondisclosed

and, hence, there was no legal justification for a protracted and expensive trial. The

Court did not discuss the troubling evidentiary and onus problems, implicitly adhering to

its position that the proximity issue was for the plaintiff to overcome in the pleadings,

with no real need to adduce evidence supporting the policy arguments, something that is

problematic to me.

The exact same conclusion could have been achieved without using the new

Cooper analysis and would have been consistent with Frame v. Smith56 in which the

Supreme Court dismissed, on the pleadings, a tort claim by a husband on the basis of his

former wifes violating a custody order causing him emotional harm and economic loss. 56 [1987] 2 S.C.R. 99. See also Seneca College, [1981] 2 S.C.R. 181

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The Court decided that tort suits in the family law context dealing with custody were to

be discouraged as it would do violence to the comprehensive statutory scheme devised by

the Legislature for these matters and would foster abusive litigation which would not be

in the best interest of the child.

Despite the chilling effect of Cooper, Canadian tort law has continued to manifest

some vitality and imagination, at least in non-government cases. For example, the

Supreme Court of Canada has held that a university owes a duty to its students not to

report a student as a potential child molester without investigating carefully.57 A student

whose career was ruined as a result of speculation and conjecture, based on a paper she

wrote, recovered tort damages because of the broader relationships between professors

and students at the university, based in part on a contractual basis. Another case allowed

an action to proceed against the manufacturer and the government on behalf of cattle

farmers injured by contaminated feed that caused mad cow disease and the ensuing

furor.58 It has been held that Canada Post could be liable for a supermailbox which

toppled over and caused loss to someone who crashed into it on the basis that it was too

close to the highway.59 A school may be liable, in addition to a ski resort, for a

snowboarding accident which severely injured a student.60 A mother can be liable for

moving a chair in the kitchen, causing her daughter, who had climbed up on it to clean

57 Bella v. Young, [2006] S.C.J. No. 2, [2006] 1 S.C.R. 108 58 See Sauer v. Canada (Attorney General), [2006] O.J. No. 26, 36 C.C.L.T. (3d) 296 (S.C.J. ) (per Winkler J.) affd [2007] O.J. No. 2443 per Goudge J.A., action against Crown and manufacturer may proceed, but not for failure to warn 59 Cumming v. Desousa, [2005] O.J. No. 71, 30 C.C.L.T. (3d) 305 (S.C.J.); see also Bigbee v. Pacific Telephone (1983), 665 P. 2d 947 (Col.), telephone booth too close to highway 60 Murao v. Blackcomb Skiing Enterprises, [2005] B.C.J. No. 113, 30 C.C.L.T. (3d) 73 (C.A.)

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the cupboards, to fall.61 A husband driving his car while drinking coffee, who started to

cough and lost control, causing an injury to his wife, is liable.62 A newspaper publisher

can be liable for failing to stop delivery of newspapers during a holiday period, as

instructed to do, which led to a break-in by criminals at a home that looked abandoned as

a result of the pile of papers in front of it.63 A delay in shipping by air certain perishable

drugs, without refrigeration, causing them to be ruined, can give rise to liability.64

Despite these few sunny spots, the tort law work of the Supreme Court in the first

years of this century is troubling. It does not measure up to its triumphant performance in

the third third of the 20th century. Canadian tort law is in a situation of trial, even of peril.

I respectfully suggest that the Supreme Court should in future take more time and be

more thorough in its analysis in these new torts test cases than it has in recent years. No

doubt the major public law decisions, many of which are still magnificent, deserve

lengthy and serious attention. But tort cases, which, after all, are chosen to be heard by

the Court, should receive the same level of consideration, as they did in the past. The

Court must be aware that every word it writes in tort cases, as in other cases, is studied

carefully and used for good or, more worrisome, for ill, with major consequences for

litigants.

The Future: A Platinum Era of Tort Law

61 Arseneault v. LeBlanc, [2003] N.B.J. No. 467, 22 C.C.L.T. (3d) 303 (Q.B.) 62 Barron v. Barron, [2003] N.S.J. No. 154, 16 C.C.L.T. (3d) 93 (S.C.) 63 Crotin v. National Post, [2003] O.J. No. 4583, 67 O.R. (3d) 752 (S.C.J.) 64 Connaught Labs v. British Airlines, [2005] O.J. No. 2019, 33 C.C.L.T. (3d) 37 (C.A.)

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My dream, after half a century of tort study, is that we will soon emerge from this

period of trial and self-doubt and that we will once again see a resurgence of that

excellence of analysis that produced the golden era of Canadian tort law. With the help

of our superb bar, its organizations, and academia, I foresee in the years ahead an

emergence of a new Platinum Era of Canadian Tort Law, which will once again make

us proud of our unique, caring, balanced and efficient tort law, reflecting who we have

been and who we are as a people in this new century.

In addition to the Cooper duty questions, the state of Canadian tort law, as well as

the rest of our society, indeed the world generally, is somewhat ambivalent these days

after its period of robust health and assuredness in the last third of the last century. We

must regain our confidence in ourselves and in our Canadian tort law, for it is still a

respectable body of law serving our society relatively well. Tort law compensates,

deters, educates and provides psychological comfort to many. It reflects and reinforces

our values of respect for the individual. It can act as an ombudsman focusing public

attention on social problems, and as an empowerer of individuals wronged by the

powerful forces in our society. But there remains, nevertheless, much to be done to

improve tort law, for there are still some warts on torts. Together let us embrace that task

of renewal so as to remake tort law to serve us better in the years ahead

Let us, judges, lawyers, scholars and legal organizations, continue to clarify,

modernize, rationalize, humanize and render more efficient our tort system. Tort law

must continue to be available to assist victims of wrongful conduct, both traditional and

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novel, to obtain compensation from those who should justly be made to pay it, and to

deny it to those not justly entitled to it. The new Civil Code of Quebec was an important

step in that direction. The new Third Restatement of Torts being finalized by the

American Law Institute, with much help from several Canadian and other

Commonwealth scholars, should assist in this endeavour. We need to search for

procedural efficiencies in the system, but we must not unduly sacrifice fairness. Tort

awards and legal fees must remain, as in the past, reasonable not too generous nor too

stingy.

Our courts in Canada, with the aid of our Bar, are perfectly capable of doing most

of this work, for, after all, the common law of torts has been created, preserved and

nurtured by common law judges for centuries. Sometimes legislative enactments may be

necessary, but we should avoid making the kind of extensive and detailed amendments to

tort law, recommended in the Ipp Report, that have been enacted by the various states in

Australia recently, in response to a crisis there of insurance company bankruptcies and

the alleged death of fun as a result of tort law in Australia.65

Let us remember that in many ways tort law is the radar of our society, providing

an early detection system for emerging dangers. That will continue as long as tort law

lives and tort lawyers breathe. In my view, tort lawyers represent not only their clients,

but our society generally in its desire to promote safety, while being fair both to victims

and defendants. In the U.S., fifty years of unsuccessful tobacco litigation finally yielded

some financial fruit to a few litigants and a major settlement, $246 billion dollars, for the 65 Spigelman, Tort Law Reform (2006), 14 Tort Law Review

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state governments. The unfairly maligned McDonalds hot coffee case66 and the U.S. fast

food obesity cases have led to coffee that is not as scalding as it was before and the use

nowadays of trans-fat free cooking oil67. The so-far unsuccessful actions in the U.S. on

behalf of victims of copycat crimes against violent movies, t.v., music and video games

may one day yield results, by increasing social pressure on the entertainment industry to

mend irresponsible its ways, even if no compensation is ever won by its victims because

of the strength of the first amendment there. The shocking sexual abuse law suits against

churches, clergy, celebrities, entertainers and politicians may hopefully teach potential

future transgressors that this conduct is totally unacceptable as well as financially costly

in our society. Computers, new drugs and other new products and activities need the

watchful eye of tort law to tame their capacity to cause harm.

We have much to learn from the handling of the 9/11 victims compensation effort

in the U.S. Because of the disastrous potential effects of thousands of individual law

suits, victims families were allowed to claim compensation from the U.S. Governments

Fund, established by Congress within two weeks of the disaster, amounts largely based

on tort law principles, instead of suing in tort in the courts. Thanks to the spectacular

leadership of the Special Master, Ken Feinberg, and many pro-bono attorneys, 97 per

cent of the 5,560 victims recovered an average of $1.3 million each, all within 13 months

of filing.68 Let us hope that our residential school claims can be settled as fairly and

quickly, now that Justice Iacobucci has got us on the right road.

66 Koenig and Rustad, In Defence of Tort Law (2001); Bogle v. McDonalds (2002), E.W.J. No. 162 67 See Burger King announcement July 2007 68 See Feinberg, What is Life Worth (2005)

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Tort law can even assist in the fight against terrorism. While the actual

perpetrators of the horrific acts and their successors seem to be totally beyond

redemption, their supporters and funders may be deterred by the many tort actions being

undertaken against them around the world. While the bereaved families of 9/11have been

well compensated speedily by the September 11th victim compensation fund, they, along

with the businesses, property owners and insurers, have joined forces in the greatest piece

of tort litigation in history to make non-American financiers of terror pay for their

complicity, 1 trillion dollars. Let us wish them well in their massive endeavour on behalf

of humanity against these contributors to worldwide terrorism.

We must remain alert to developments around the world, aimed at improving tort

law and its operation. One exciting experiment that deserves watching is the new Irish

Personal Injuries Assessment Board, which began its work in 2005 to combat compo

thinking.69 Most personal injury law suits cannot be launched in Ireland without the

Boards prior authorization. The Board must assess most personal injury damage claims

(workmen, auto accident, slip and fall, medical malpractice) within nine months of filing

with the Board and issue non-binding awards, 75% of which have so far been accepted by

the parties. The administrative costs have been dramatically cut to 10% and the number

of torts cases in the Courts of Ireland have been substantially reduced. While this may

not be a universally popular approach here or even in Ireland we torts people must be

willing to follow its development and consider its potential, at least for routine cases that

are often not worth the expense required to resolve them in the usual way.

69 Personal Injuries Assessment Board Act (2003), Ireland

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I never cease to dream the impossible dream, as I have for decades, of a joint

federal-provincial study on tort compensation that would help to fill in gaps, minimize

conflicts, coordinate schemes, prevent overlaps, and encourage uniformity in the

provinces, where diversity is running rampant. It will require a youthful and energetic

team to undertake this Herculean task.

Here then are the ramblings of an old tortaholic on the triumphs and trials of

Canadian tort law and my dream for a bright future for the world of torts. I hope it

explains also the continuing allure of this fascinating and significant area of human

endeavour to us torts people, who may get no kick from champagne, but who still get a

kick out of torts.