MOS2276 Lecture 2
Quizzes will include
1. Ask about the cases ▯ specific cases
2. What the impact of specific cases is, on which courts is that case binding, which ratios are binding and how does
that affect the law going forward
3. Hypothetical facts ▯ which case applies in terms of the principal that’s raised… take principal and apply
Assigned cases on the table of cases NOT table of contents
Print material for next two weeks’ readings
12:00 start of lecture
Parlee (Guardian ad Litem of) v. Port of Call Holding Ltd.
Guardian ad Litem: litigation of a minor
Sued for intentional tort of false imprisonment
Defence is lawful citizen’s arrest
British Columbia Supreme Court ▯ not the court of appeal, it’s a trial court, but it’s not a trial, it’s an appeal
Why is there a TC hearing an appeal?
• Small claims court are at the bottom
o When the decision of a small claims court is appealed, it get appealed to the regular TC
o First appeal goes to TC NOT court of appeal
Appeal ▯we’re not talking about facts, in this decision must involve issues of law. Facts come from TC, not appeals
At trial, case was dismissed. No false imprisonment
Mr. Parlee appealed. Whether or not this is a lawful citizen’s arrest? If yes, then it’s not false imprisonment.
What’s the legal test for whether a citizen’s arrest is lawful?
1. Have to believe a crime has been committed ▯by the person (subjective)
2. The belief must be reasonable based on the facts
In this case, the twopart test was not satisfied:
Second part was satisfied, not the first part.
Detained for the purpose of investigating whether a crime has been committed ▯he didn’t believe it.
If he had a reasonable belief, then he had it, but he didn’t have the belief.
Awarded Mr. Parlee $500
Judges apply the law to the facts and do not make decisions on other considerations such as whether Mr. Parlee stole the
chocolate milk. However, the issue before the court is whether this is a lawful citizen’s arrest, NOT whether the judge
liked Mr. Parlee or if he stole the milk.
M’Alister (or Donoghue) v. Stevenson
Expanded law of negligence ▯first time that manufacturers owe a duty to consumers (high court accepted the idea)
House of Lords decision (highest court in England)
We care because
1. 1932, House of Lords is the highest order of court for Canadian law purposes a. You could appeal a case from SCC to house of lord
2. In 1982? Made SCC the highest court in Canada
a. No longer binding on Canadian courts as such
b. THIS decision is no longer binding …….
1. It’s very persuasive
a. Due to the court
b. Significant precedent value
2. The principal of this case that a manufacturer owes a duty to consumers of its products has been widely followed
including the SCC
a. Principal for which it stands is binding because it’s been consistently followed in all levels of courts in
John et al. v. Flynn et al.
Mr. John sued Flynn and Eaton Yale ▯vicarious liability
Eaton Yale was Flynn’s employer
Vicarious liability applies when the employee is performing the job
Mr. John says Eaton Yale owes a duty of care because he was in the position of stopping this from happening
Would a reasonable person in those circumstances foreseen harm?
• He was involved in the alcohol program and allowed him to drink on the job and get in the car
Court said there was no duty of care. If there was, it ended when Flynn got home safely. (Ratio)
• A reasonable person would’ve not foreseen he would’ve gotten home safely and then get out to injure someone
• Result may have been different if he injured Mr. John on his way home from the job (Obiter because that’s not
this case, therefore that cannot be the reason for the decision for this case)
o This is persuasive but not binding
Would it have been decided the same today?
Possibility that it would’ve been decided differently if it’s today.
Law for injuries by drunk drivers is changing due to changes in social norms of DUI are changing.
More disapprovals of injuries caused ▯ shown in the law (more strict laws and judges imposing more liability in cases,
• Law is slowly changing to reflect changing social norms and values
Zoe Childs’ case involved a social host not a commercial host.
• 3 time convicted drunk driver, killed her boyfriend and significant damages to her
• Minimum $1MM compensation but drunk driver didn’t have enough money to pay
• Sued the social host of the home owner where the drunk driver had been drinking all night
a. Lost in court of appeal ▯no precedent
b. SCC released reasons: assisted her with MADD Canada and Robert Soloman (?)
c. SCC lost again
i. However, they were instructive in their reasons and said the social host does not owe a duty of
care in this case
ii. This should not be interpreted that there cannot be a duty of care of a social host. If we were
presented with the right facts, then we could see finding of duty of care
iii. BYOB party, host doesn’t know and ???? ▯SCC: no duty of care on these facts
iv. Now there’s obiter from the SCC which indicates that it’s possible
v. Impose greater liability on people how promote the consumption of alcohol on their premises,
duty of Qua’s eye host is ???
Qua’s eye commercial host? ▯providing alcohol to be consumed not for money but in a profit context
Commercial host is a host that serves alcohol for money (standard is very high) Social host: never been a case in Canada where the social host is held liable for a third party injury
What facts needed to be different?
Courts don’t say whether the results would be different if facts changed ▯left to speculate on
Arndt v. Smith
1. Prove the defendant owed duty of care
2. Breached of duty of care
a. Yes, he should’ve warned her (acted negligently)
3. By doing so, defendant caused the injuries
a. Defendant didn’t cause the injuries since plaintiff would’ve had the baby anyways
b. Outcome would’ve been the same
You can’t cause something if the outcome had been identical if you had done something else
SCC: she would’ve had the baby anyways… they didn’t testify that. They only said that in these circumstances, a
reasonable person would’ve had the baby anyways
She didn’t have that choice because the doctor failed to warn her of the risk
Does the SCC get to say whether someone would’ve chose abortion or not provided this information?
• Yes, they can make that call
SCC reversed the court of appeal’s decision ?? What finding was reversed?
72 … ▯9 judges heard the case, 7/9 agreed and 2 didn’t agree
Mortimer v. Cameron et al.
Play fighting and their play fight got from apartment to the landing… the landing gives way and drops 10 feet
Plaintiff falls and defendant falls on top of him. Injuries were
Plaintiff sued building owner and city and his friend
City: negligently for failing to properly inspect when inspected
Owner: negligently allowed for dangerous conditions to be present
Home owners and tenants often has insurance ▯third party liability coverage
Court says there is a duty of care and there was unreasonable behavior, but in order for there to be causation, the type of
injury sustained must have been reasonably foreseeable.
• Distinction is subtle
• Reasonable person would’ve seen broken bones as a result of a play fight
• However, landing gave way, the injury is defined by the judge as catastrophic injuries resulted because the landing
o Must be reasonably foreseeable, therefore no causation for his friend
Hercules Managements Ltd. Et. Al. v. Ernst & Young et Al.
Plaintiffs relied on the financial statements negligently prepared for investment
Do the auditors owe a duty of care for investment purposes?
Courts say no.
Duty of care is whether harm is reasonably foreseeable
SCC says that’s only part of it
The ann’s test is two fold
1. There is reasonable foreseeability
2. Whether there were any public policy considerations which negate the duty of care a. Anybody can rely on the statements and sue for negligence
b. Therefore scope is too far
c. Public policy considerations must not hold them liable for circumstances such as this one
Case has negative impact on the Canadian law
Corporate fraud and white collar crime is a big problem,