CH 5 Cont’d
The tort of nuisance occurs when the defendant unreasonably interferes with the plaintiff’s use and enjoyment
of their own land (our discussion is limited to the tort of private nuisance).Anuisance occurs if the defendant
interferes with the plaintiff’s use of their land; interference can happen in a variety of ways. Forms of nuisances
include: physical damage (ex: chemical emitting killing plants of neighbours, construction causing heavy
vibrations), impaired enjoyment—smell or sound that impairs the enjoyment of the plaintiff’s property
(operating a pig farm, blaring loud music), non-intrusive nuisance (operating a brothel bringing criminals near
the area, installing something like a sewage system that damages the foundation of the other’s property).A
nuisance occurs only if the defendant’s interference is unreasonable. The courts look at a number of factors,
physical damage being unreasonable, but not if it’s just merely impairing the enjoyment of the plaintiff’s
property especially if the defendant is non-intrusive. They also consider the nature of the neighbourhood, and
the time & day of the interference, the intensity and duration of the interference, the social utility of the
defendant’s conduct and the defendant’s motivation.
Defences to Nuisance
The defence of statutory authority means that the defendant caused a nuisance while acting under legislation. It
applies only if the nuisance was an inevitable result of the statutorily authorized activity. Or consent to activity.
Moving to nuisance is not a defence; it is irrelevant who was in the neighbourhood first.
Remedies for Nuisance
Most common remedies for nuisance are compensatory damages to repair losses and injunctions to prevent
Quick Guide to the Occupiers’ Liability Act
Occupiers’liability—liability arising from a status as occupier of premises; occupier is a person with substantial
control of premises and premises is land, ships, trains, planes, elevator, etc. It is different if the person was
invited: guest, salesperson and so on.
What does the Occupier’s LiabilityAct (OLA) govern?
The OLAsets out the standard of care that will be expected of occupiers of premises to prevent accidents and
injuries occurring on the premises in question. The types of situations that might engage the OLAinclude, for
example, a “slip and fall” because a person did not shovel the ice on his/her driveway; an injury caused when
someone trips over toys left inside a house or in the yard; an injury caused when someone slips on a wet floor;
or an injury caused when someone falls down a set of stairs that are in poor repair (e.g., uneven boards).
Who has duties under the OLA?And what kinds of places are captured under the OLA?
“Occupiers” of “premises” have duties. Both “occupier” and “premise” are defined terms.
Occupier includes a person who has physical possession of premises (including a tenant or owner) and a person
who has responsibility for and control over the condition of the premise (e.g., property manager, superintendent,
etc). In other words, you can be an “occupier” if you just rent an apartment. You are also the occupier if you
own the property (although there are special provisions for landlords) or if you are in charge of maintaining the
Premise includes lands and structures subject to a few exceptions that are mostly related to water and various
forms of transportation. Any house and yard would be captured within the meaning of “premise”.
So what duties exist?
The general duty: an occupier has a duty to take reasonable care under the circumstances to ensure that
people on the premises (and the property that such people may bring with them) are kept reasonable safe while
on the premises.
Note that an occupier can restrict, modify, or exclude his or her duty under theAct. For example, when you ski
at Blue Mountain, Blue Mountain has excluded its duty to keep you reasonably safe. Of course, Blue Mountain
informs you about this exclusion of liability. But without the exception provided in the OLA regarding the
ability to limit liability, Blue Mountain would probably not have been permitted to limit its liability. Alas, the OLApermits restrictions, modifications, and exclusions of the duty of care set out in theAct and thus we have
trees to ski around at Blue Mountain.
Bad guys beware: a lower standard for risks willing assumed (including criminal activities): Where a
person has willingly assumed a risk on the occupier’s property, then the occupier only owes a duty not to
create a danger with the deliberate intent of doing harm or damage to the person or to his or her
property and not to act with reckless disregard of the presence of the person. The OLAstates that a person
who is on the premises with the intention of committing a criminal act or who is in the process of committing a
criminal act, is automatically deemed to have assumed all risks and therefore is subject to this lower duty of
care (ie the duty not to act with the deliberate intent of doing harm or damage to the person and his/her
Example: Jack enters your premises late one night with the intention of vandalizing your garage. He plans to
spray-paint a bad word on your garage door. He is therefore engaged in a criminal act.
Here, you owe Jack a duty not to do things like set traps for him or shoot your shotgun off in the middle
of night in the general direction of “a noise”. (All the things that the kid did to the burglars in Home Alone
would likely breach the duty of care owed to people who willingly assume risks, including criminals.)
BUT you do NOT owe Jack a duty to take reasonable care to keep him reasonably safe on the premises.
So if you carelessly left a ladder outside and Jack tripped over it and broke his nose, you would not be found
liable since Jack is not entitled to the general duty of care in the OLA.
Other important stuff
-There are a number of provisions governing how and when an occupier can modify, limit, or exclude his
liability under the OLA. Basically, it is possible to modify, limit, or exclude liability under the OLA, but the
occupier generally must be in a contractual relationship with the person to whom the occupier owes the duty
and proper notice must be given. Review the OLAfor more details.
-Special provisions apply when there is an independent contractor working on the premises and an injury occurs
because of something the independent contractor has done. Read the OLAfor more details.
-Landlords have modified duties under the OLA. Again, read the OLA for details.
-Certain types of occupiers have enhanced duties. Innkeepers, for example, have higher duties of care. Read
the OLAfor details.
-The OLAdoes apply to the Crown (subject to the Proceedings against the CrownAct)! “Sorry, your Majesty,
you’ll have to put the corgi’s toys away. They constitute an unreasonable risk under the OLA.”
CH 6 – Negligence
The tort of negligence determines whether the defendant can be held liable for carelessly causing the plaintiff
to suffer a loss or injury. The tort of negligence requires the plaintiff to prove that the defendant:
-owed a duty of care, in that they were required to act carefully toward the plaintiff
-breached the standard of care by acting carelessly
-caused harm to the plaintiff
But the defendant may avoid liability by proving a defence; the defendant may show that the plaintiff:
-was guilty of contributory negligence that caused or contributed to the injury
-voluntarily assumed the risk of being injured by the defendant
-was injured while engaged in some form of illegal behaviour
Professional negligence refers to negligence that is committed by a professional person like a banker, lawyer or
Duty of Care
Aduty of care exists if the defendant is required to use reasonable care to avoid injuring the plaintiff. Without
duty of care there cannot be liability.
Ethical Perspective (duty of care):Apregnant woman doesn’t owe duty of care to her unborn child.Anyone but
a mother can owe duty of care.And everyone but a mother can be held liable for carelessly causing an injury to
a child after birth. This rule tries to strike a balance between the desirability of providing compensation for the
injured child and the desirability of protecting the woman’s freedom of action. Freedom of action- imposing duties on women can be intrusive and onerous and virtually everything a mother does affects the fetus. Liability
would only attach to careless acts.
Test for Determining the Existence of Duty of Care: Based on the Donoghue v. Stevenson case, Canadian courts
have developed a unique test for the creation of a duty of care. If the duty of care answer has not already been
answered, these questions will be asked: “was it reasonably foreseeable that the plaintiff could be injured by the
defendant’s carelessness?” “did the parties share a relationship of sufficient proximity?” If an injury was
reasonably foreseeable, and if the parties shared a relationship of sufficient proximity, then a duty of care
presumably will exist. But duty of care can be denied on the basis of policy reasons.
Reasonable Foreseeability- This test is objective. Would a REASONABLE person know these activities might
injure the plaintiff? You can’t always sue everyone because a person cannot take precautions against a hidden
danger. Also you should be able sue them just because the defendant wasn’t paying attention. The purpose is
Proximity- The idea is that there must somehow be a close and direct connection between the parties (physical
proximity, simply). Or more complex: is there a shared social relationship (parent and child), is there a shared
commercial relationship (restaurant owner and drunken guest causing an accident), if there was a direct causal
connection between the defendant’s carelessness and the plaintiff’s injury (motorist rams into a bridge will be
liable for the damage to the bridge but probably not for the profits that were lost when customers couldn’t reach
a store that was on the other side of the bridge), whether the plaintiff relied on the fact that the defendant
represented that they would act in a certain way (railway company may have duty to continue operating a safety
gate that it voluntarily installed and that people have come to rely upon). (physical, social, commercial or
Duty of care for Professional Statements: in business world the best ex. Concerns negligent statements
(courts are reluctant to recognize a duty of care to avoid acts that cause psychological, rather than physical,
injury). The law of negligence statements must strike a balance between the need to compensate people who are
hurt by negligent statements and the need to protect businesses from the potentially disastrous consequences of
being held liable. Careless statements are diff. from careless actions in these ways: dangers with physical
conduct are usually obvious whereas risks associated with statements are often hidden, “words are more volatile
than deed”, risk created by careless action is limited in time and space; if a duty of care exists for a careless
statement, there is a possibility of “liability in an indeterminate amount for an indeterminate time to an
indeterminate class”, and careless actions usually result in property damage or personal injuries whereas
careless statements usually result in pure economic losses, financial losses that are not tied to any property
damage or personal injuries.
Policy- it is concerned with the effect that a duty of care would have on the legal system and on society
generally. Would the recognition of duty of care: 1) “open the floodgates” by encouraging a very large number
of people to swamp the courts with lawsuits?” 2) Interfere with political decisions, 3) hurt a valuable type of
relationship? EX: no general duty to rescue
Duty of care will be imposed on a professional under two important factors: 1) the existence of a close
relationship between the parties and 2) the extent to which the client relied upon the professional.
Breach of the Standard of Care
The second element of the cause of action in negligence requires the plaintiff to prove that the defendant
breached the standard of care. The standard of care tells the defendant how they should act. It is breached when
the defendant acts less carefully. It is based on the reasonable person test—the defendant must act in the same
way that a reasonable person would act in similar circumstances. Some important and relevant factors of the
reasonable person test: it is objective, it doesn’t make allowances for the defendant’s subjective or personal
characteristics, the reasonable person takes precautions against reasonably foreseeable risks, the reasonable
person is more likely to adopt affordable precautions, the reasonable person may act in a way that has great
social utility, even though it creates a risk, and the standard of care requires the defendant to act as the
reasonable person would act in similar circumstances; less care required during emergencies; the sudden peril
doctrine states that even a reasonable person may make a mistake under difficult circumstances. The Standard of Care for Professionals: Professional Negligence: Five factors the courts pay attention to when
dealing with professionals: 1) it’s not enough for a professional person, while engaged in a professional activity,
to meet the standard that would be applied if a layperson performed the same task.Aprofessional must act as
the reasonable professional would act in similar circumstances. –live up to the training they got or claim to have
got, more is expected from a specialist, and special allowances are not made for beginners (all based on
reasonable expectations people have about professionals). 2) It’s easy to say what could have been done to
avoid injuring the plaintiff; it’s unfair to judge the defendant’s actions in hindsight/reflection. The standard of
care is based on info that was reasonably available to the defendant at the time of the accident. 3) Carelessness
is diff. from mere errors of judgment. 4)Aprofessional who follows an approved practice generally cannot be
held liable; sometimes an approved practice itself is careless. 5) Compliance with a professional standard
usually protects a professional from liability; a statutory standard may protect a defendant. The issue of breach
of a statutory duty actually extends beyond the context of professional negligence. Breach of a statutory duty is
merely one factor that a judge will consider in deciding whether a professional acted with reasonable care.
The Standard of Care for Manufactured Products: Product Liability: Product liability can occur when a person is
injured by a product. Rules in Canada are more strict liability, that way it would i) better ensure that consumers
are compensated for injuries that are caused by defective products, ii) encourage manufacturers to develop safer
products and iii_ require manufacturers to pay for the losses that they cause as a result of selling their products
and earning their profits. But concerns about strict liability include i) unfairly requiring a manufacturer to pay
for an injury even though it has used reasonable care, ii) increase the number of lawsuits against manufacturers,
ii) increase the cost of liability insurance for manufacturers, and iv) eventually increase the cost of products.
The courts almost always find that a duty of care is owed to a person who was injured by a defective product
whether they purchased, consumed it or are just a bystander. Because it is reasonably foreseeable that a
defective product may hurt someone, there is sufficiently close proximity between the manufacturer and the
victim and there are no policy reasons for generally denying relief.
Manufacture- careless manufactured products imposes liability
Design- Adesign defect usually affects every item that is product unlike a manufacture defect which usually
affects a few items only.
Failure to Warn- even if the product is carefully designed and manufactured, liability may arise if the
consumers aren’t reasonably warned about its dangers. The nature and extent of the warning depends upon the
circumstances, a warning is usually needed only for product’s intended use but sometimes it is required for a
use that is unintended, but foreseeable, a warning may be required even though the manufacturer discovers the
danger after the product has been sold (recall + contact), a warning is not only required by a manufacturer but
also by someone who sells, distributes, or installs a product. Defendants may avoid liability if they provided a
warning to a learned intermediary; the rule may apply if a product is always sold to a professional rather than
directly to the intended consumer.
Causation of Harm
The third element of the claim in negligence- highlights of the basic principles only. The issue of causation is
usually decided by the but-for test—it requires the plaintiff to prove that they would not have suffered a loss but
for the defendant’s carelessness. Question: But for the defendant’s carelessness, would the plaintiff have
suffered the same loss? Yes- the defendant did not cause the plaintiff’s loss so the defendant cannot be held
liable. No- the defendant did cause the plaintiff’s loss and the defendant may be held liable. Note that 2) the
plaintiff generally has to prove all the elements of the tort of negligence, including causation, on a balance of
probabilities, 2) the law generally adopts an all-or-nothing approach, 3) the plaintiff has to prove only that the
defendant’s careless ness was a cause—not necessarily the only cause—of a loss, 4) if different defendants
cause the plaintiff to suffer different injuries, then each one is responsible accordingly, 5) the situation is more
complicated if different defendants create a single injury (jointly and severally liable of the diff. defendants—
meaning the plaintiff can recover all the damages all from one person of choice of whoever has more blame), 6)
a court may reject the but-for test if it would lead to an unfair result (deer hunting example).
Remoteness: a loss is event that the manner in which it remote if it would be unfair to hold the defendant
responsible for it. In negligence, the basic issue is whether the type of harm that the plaintiff suffered was a
reasonably foreseeable result of the defendant’s carelessness. If the type of harm that the plaintiff suffered was reasonably foreseeable, it’s irrelevant that the manner in which it occurred was not. The remoteness principle is
used to resolve thin skill cases—occurs if the plaintiff was unusually vulnerable to injury. This principle is also
used to deal with intervening acts.An intervening act is an event that occurs after the defendant’s carelessness
and that causes the plaintiff to suffer an additional injury. Liability will be imposed if the original negligence
increased the risk of the plaintiff’s subsequent injury.
The plaintiff is usually entitled to compensatory damages once the court is satisfied that there was i) a duty of
care, ii) a breach of the standard of care, and iii) a causation of harm. Three important defences include:
Contributory Negligence: occurs when a loss is caused partly by the defendant’s carelessness and partly by the
plaintiff’s own carelessness. Factors that are considered in deciding if the plaintiff is guilty of contributory
negligence: foreseeability of harm, likelihood of injury, severity of harm, and so on. Contributory negligence
may arise if the plaintiff: unreasonably steps into a dangerous situation, unreasonably contributes to the creation
of an accident, unreasonably contributes not to the creation of an accident, but to the damage that it causes.
Apportionment/sharing are now allowed for damages of contributory negligence.
VoluntaryAssumption of Risk: this defence applies if the plaintiff freely agreed to accept a risk of injury. This is
a complete defence (sometimes called volenti). It if applies, the plaintiff cannot recover any damages. The
defendant has to prove that the plaintiff expressly or implicitly agreed to accept both the physical and the legal
risk of injury. Best way is to prove that the plaintiff signed an exclusion clause.
Illegality: this defence may apply if the plaintiff suffered a loss while participating in an illegal act. This is an
unpopular defence because it is a complete defence. It doesn’t allow for the apportionment of liability.
CH 7 – Nature and the Creation of Contracts
Acontract is an agreement that contains legally enforceable rights and obligations.Ameeting of the minds is a
shared decision to enter into a legal transaction on a particular basis (sometimes referred to as consensus ad item
or “agreement on that previously mentioned”).An exchange of value occurs when the parties each give up
something (sometimes referred to as quid pro quo or “something for something”). Every contract requires a
number of distinct steps or elements; Three are especially important: 1) The parties must have an intention to
create legal relations, 2) The must reach a mutual agreement through the process of offer and acceptance, and 3)
They must enter into a bargain by each giving consideration. (First two discussed in this chapter and 3 in rd
chapter 8. They require a “meeting of the minds”.
Intention to Create Legal Relations
Acontract will not arise without an intention to crea