This half-term course will introduce you to the tort of negligence. Public opinion of tort law has been skewed by high-profile litigation, particularly in the US. Even Weird Al is poking fun of torts these days. After completing this course, you'll have the legal skills to assess whether claims like the following have any chance of success.
Your mark for the fall term will comprise 50% of your total grade. The remaining 50% will be based upon your performance in Professor Elgie's class, taught during the winter term. This term's grade will be based solely on a 2-hour written exam at 09:00 on December 14, 2007. However, class participation will be factored into any discretionary decision I may make regarding grades or other matters.
We'll begin the year with an introduction to the nature and purpose of tort law. That means familiarizing ourselves with the "first principles" that underlie and heavily influence the development of the law in this area.
Pages 155-56 of the LKF casebook give you a sense of what's required to establish liability for negligence. Read those pages. Though there are many ways we could structure an analysis of negligence (and a course about it), one thing every plaintiff pleading negligence must do is establish that the defendant owed the plaintiff a "duty of care." Absent a duty, a defendant can act as carelessly as he/she/it pleases. There will be no liability.
If a court is satisfied that a legal duty of care exists in particular circumstances, the questions then turn to the applicable standard of care. Though determining the standard of care can sometimes be a complicated matter, lately it has been less controversial than other topics in tort law. We'll spend 2 full classes tackling this issue.
On pages 508-512 there is an extract from Jane Doe v. Metro Toronto Police, but that extract tells us very little about the circumstances leading to this case and its subsequent impact. So we're privileged to have Jane Doe as our guest at the Faculty of Law on Thursday, October 25, 2007 at 11:30am in FTX 147, 147A and 147B.
After covering duty and standards of care, we'll next turn our attention to the issue of remoteness. This topic is problematic for a number of reasons, not least of which is that few can agree on a consistent label for the underlying principle. Sometimes it is referred to as remoteness, sometimes proximate cause, and sometimes it is disguised with altogether different language. Personally, I try to avoid the term "proximate cause" because it is too easily confused with the proximity branch of the duty analysis and/or the issue of factual causation that we'll cover later. Jargon aside, here's what we're talking about: In some cases the damages suffered by a plaintiff are simply too far removed from a careless action to hold the defendant liable for those damages. In those cases we say that the damages are too remote to be recovered, or that the action is not closely connected (proximate) enough with the damages to impose liability.
Liability for "nervous shock" or "psychiatric damage" is a sort of special topic in tort law. Basically, nervous shock is emotional harm, as opposed to (or in addition to) physical or economic injury. Sometimes this is treated as a duty issue, sometimes as a matter of remoteness and sometimes as a twist on damages. It incorporates ideas about foreseeability, consideration of the thin skull principle and other difficult questions we have or will covered elsewhere. So rather than pigeonholing it into one or another of the main elements of a negligence action, we'll just devote an entire separate class to cover the issue. Before class, please read pages 310-11 of LKF and also carefully review the Ontario Court of Appeal's decision in Mustapha. Too bad the SCC won't hear the case until next March, or we could've had a great class trip!
Another special topic we'll tackle relates to warnings. The reason we're giving this issue special treatment is because it also implicates aspects of several other elements of a negligence action, such as duty of care, standard of care, remoteness and cause-in-fact. The major cases we'll cover include Reibl v. Hughes (pages 222-37 of LKF) and Hollis v. Dow Corning (pages 404-08). You'll also recall that Jane Doe's case is most famously known for establishing the police's duty to warn people who they know could (will?) be victims of a crime. (You'll also recall her wishing people would take more notice of another aspect of her litigation: the acceptance of legal pleadings in plain language based on feminist perspectives and literature about the social realities of rape.) I'd encourage you to read the whole case, but at least look at pages 55-61, which deal with the duty to warn.
A defendant can only be held liable in negligence if a plaintiff proves that the defendant actually (or perhaps I should say factually) caused the plaintiff's injuries. "But-for" is the basic rule that governs this issue. We've touched on that rule before, but to see it in practice, check out the case of Kauffman v. TTC at pages 159-60 and some of the notes following in the LKF casebook. If you continue on to the next case, Athey v. Leonati at pages 161-66, you'll see that sometimes the but-for principle isn't so easily applied. That case alludes to some of the circumstances where the but-for test's deceptive simplicity makes it unworkable. For example, what if there are multiple successive injuries? What about multiple factors contributing to the same injury? What if there are multiple defendants, one of whom certainly caused an injury but it can't be proven precisely which? There are the kinds of topics we'll tackle through the materials at pages 252-274 of LKF and paras 1-5 and 13-29 of the recent SCC decision in Resurfice. On the course map I also asked you to read pages 274-80, which deal with "market share liability." You'd certainly benefit from reading those pages, but we'll only cover them in class if there's time.
Bruce Feldthusen will be speaking to our class about pure economic losses on Thursday, November 15. Some of you may recall that he was originally scheduled to teach this course, until his appointment as acting vice-president of the university led him to suspend his role as Dean of our law school. (Of course, but-for that turn of events, we'd not have had the pleasure of taking torts together!) Anyways, VP Feldthusen is a universally-recognized torts guru, and literally THE leading expert on the planet when it comes to the topic of economic losses. He really did write the book on this stuff. He also coedited our casebook and is a coauthor of the accompanying textbook with Justice Linden. His analytical framework for economic loss has been adopted by the Supreme Court, and remains the most accurate reflection of the law in Canada today. In preparation, I want you to skim Chapter 10 (pages 439-490) of the LKF casebook. Note that I said "skim," just to get an idea of the cases and issues that will be addressed during this lecture.
Well, the next member of our absolutely stellar cast of guest speakers this term is none other than Mr. Harvey Strosberg. I don't even know where to begin to chronicle his long list of accomplishments, so I'll highlight some of the most notable. Mr. Strosberg is renowned as Canada's leading class action litigator. That's a well-deserved reputation stemming from his involvement in cases over Canada's tainted blood scandal and the Walkerton water contamination tragedy, among many others. He is also a bencher and former treasurer of the Law Society of Upper Canada, a body most of you will soon be joining. For a captivating though somewhat dated exposition of Mr. Strosberg's practice, read this article from McLean's magazine. He'll speak to us about class action law. In preparation, you have to read section 5 of Ontario's Class Proceedings Act. Be sure to print a copy and bring it with you to class on Monday, November 19.
So I figured I couldn't pass up the opportunity of teaching torts again without preaching to you about of my own pet projects. I've spent the last several years researching, writing and consulting on an attempted class action over drifting genetically modified organisms. A group of organic farmers in Saskatchewan (this provincial connection triggered my interest in and affiliation with the case) are trying to sue Monsanto and Bayer CropScience for releasing GM canola into the environment. These GMOs inevitably drift and as a result have caused significant and ongoing damage to organic farmers' crops and fields, as well as economic harms flowing from the inability to be certified organic and thus sell to key foreign and domestic markets. The plaintiffs have taken a "kitchen sink" approach (not on my advice) by alleging causes of action in negligence, nuisance, trespass, strict liability and breach of environmental legislation. The Court of Queen's Bench and the Court of Appeal for Saskatchewan both slammed the door on the plaintiffs' case. An application for leave to appeal to the SCC is now pending. To prepare for my sermon, read paras. 25, 27 and 38-88 of the Queen's Bench decision. I'd also ask you to read this article from The Lawyers Weekly, which I wrote with Prof. Heather McLeod-Kilmurray. I've also published a number of other articles on this topic (that I don't expect you to read), including "The Rights and Responsibilities of GMO Patent Owners" in the UBC L Rev and "Biotrespass" in the Bulletin of Science, Technology and Society.
It's hard to believe that the negligence portion of the course is coming to an end. I've restructured things a bit by cutting out defences (you'll take that up with Professor Elgie next term) and instead spending our remaining time on damages, and doing a final recap to tie everything together. There is an awful lot to read regarding damages -- 50 pages, from 715-765. Sorry for that, but doing all that reading means we'll be able to better focus class discussion on the key points: "the trilogy" of damage cases, the distinctions between pecuniary and non-pecuniary losses and the difference between compensatory and punitive damages.
I am an Associate Professor at the University of Ottawa's Faculty of Law. My expertise is in the area of technology and intellectual property law. Read more details or follow me on twitter.
