Ontario Tort Law — Negligence, Occupiers' Liability, and Defamation

Negligence — The Foundational Framework

Negligence requires proof of: (1) a duty of care owed by the defendant to the plaintiff; (2) breach of the standard of care; (3) damage; and (4) causation between breach and damage. Each element must be established on the balance of probabilities.

Duty of Care — The Anns/Cooper Test

The modern duty of care analysis in Canada derives from Donoghue v Stevenson[1932] AC 562 (neighbour principle — reasonable foreseeability) but was reformulated in Cooper v Hobart 2001 SCC 79 and Edwards v Law Society of Upper Canada2001 SCC 80, establishing the "Anns/Cooper" framework:

• Stage 1 — Prima facie duty: Was harm to the plaintiff a reasonably foreseeable consequence of the defendant's act? Was the relationship between the parties sufficiently proximate — close enough that it is just and fair to impose a duty?
• Stage 2 — Policy: Are there residual policy reasons to negate or limit the scope of the duty, the class of persons who can rely on it, or the damages that can flow from breach?

Recognized duties exist in established categories (manufacturer/consumer, employer/employee, doctor/patient, occupier/visitor). New categories require the full Anns/Cooper analysis. The duty of care does not extend to pure economic loss absent a special relationship creating reasonable reliance — Winnipeg Condominium Corp No 36 v Bird Construction[1995] 1 SCR 85 (dangerous building exception); Hercules Managements v Ernst & Young[1997] 2 SCR 165 (auditor to shareholders — policy negates duty).

Negligent Misrepresentation

Liability for negligent misrepresentation arises where there is a special relationship (one party has special knowledge; other relies reasonably) and the misrepresentation is inaccurate and carelessly made (Queen v Cognos [1993] 1 SCR 87 five-part test: special relationship/representation/representation careless/reasonable reliance/damage).

Standard of Care

The standard of care is objective — that of a reasonable person in the circumstances (Vaughan v Menlove (1837) 3 Bing NC 468). The reasonable person is not perfect: they are required to take precautions proportionate to the foreseeability and gravity of the harm and the cost of precautions. The Bolton v Stone [1951] AC 850 formula — probability of harm × magnitude of harm, weighed against cost of precautions — applies in Ontario.

For professionals, the standard is that of a reasonably competent professional in the relevant specialty (ter Neuzen v Korn [1995] 3 SCR 674 — medical professional standard). Compliance with an industry standard does not conclusively establish the standard of care was met; courts retain authority to find the standard itself negligent (TJ Hooper60 F.2d 737 (2d Cir 1932) adopted in Canada).

Causation

But-For Test

The primary causation test is "but for" the defendant's negligence, would the plaintiff have suffered the damage? (Clements v Clements 2012 SCC 32). The plaintiff must establish on the balance of probabilities that the breach was a necessary cause of the loss. Multiple causes are handled by asking whether each defendant's negligence was a cause "but for" which the loss would not have occurred.

Material Contribution — Exception

Where it is impossible for the plaintiff to prove but-for causation — because multiple defendants each produced a risk and medical science cannot attribute which defendant's breach caused harm — the material contribution to risk test may apply (Clements per McLachlin CJ;Athey v Leonati [1996] 3 SCR 458). Material contribution to risk is narrow; courts are reluctant to expand it beyond the market share liability or multiple tortfeasors scenario.

Loss of Chance

Ontario courts have not uniformly adopted loss of chance as a basis for recovery in negligence. The leading SCC statement is Laferrière v Lawson [1991] 1 SCR 541 — loss of chance is not a compensable head of damages where the ultimate harm (death, serious injury) did not occur; recovery requires proof of the actual harm on the balance of probabilities.

Contributory Negligence and Apportionment

Ontario abolished the contributory negligence complete defence through the Negligence Act RSO 1990 c N.1. Under s.3, where damage is caused or contributed to by the fault or neglect of two or more persons, each is liable to the plaintiff to the extent of their degree of fault. Defendants are jointly and severally liable to the plaintiff, but have rights of contribution against each other proportionate to their fault.

A plaintiff who is contributorily negligent has their damages reduced proportionately to their own fault. The finder of fact apportions fault as a percentage; if the plaintiff is 30% at fault, their recovery is reduced by 30%.

Occupiers' Liability

Ontario's Occupiers' Liability Act RSO 1990 c O.2 replaced the common law categories of invitee, licensee, and trespasser with a single duty of care. Under s.3(1), an occupier of premises owes a duty to take such care as in all the circumstances is reasonable to see that persons entering the premises and their property are reasonably safe.

The occupier's duty under the Act is not absolute — it requires reasonable care in the circumstances. Relevant factors include foreseeability of the risk, the cost of eliminating it, and the purpose of the visitor's entry. The duty may be modified by agreement or warning (s.3(3)) but only to the extent permitted by the Act — restrictions cannot operate to eliminate the duty of care entirely (Waldick v Malcolm [1991] 2 SCR 456).

Trespassers receive a lower standard under s.4 — the occupier must not create a danger with intent to injure or act with reckless disregard for the trespasser's presence. The standard is higher for child trespassers where there is an artificial allurement.

Defamation

Defamation in Ontario is governed by the common law (as modified by statute) and involves:

• Publication of a statement
• The statement refers to the plaintiff
• The statement is defamatory — lowers the plaintiff's reputation in the estimation of right-thinking members of society (Sim v Stretch [1936] 2 All ER 1237)

Defamation is actionable per se — the plaintiff need not prove actual damage. However, damages are compensatory and the plaintiff must establish the extent of their loss.

Defences

• Justification (truth) — a complete defence; defendant must prove the statement was substantially true
• Fair comment — an honest expression of opinion on a matter of public interest, based on true facts
• Absolute privilege — statements made in Parliament, courts, and certain quasi-judicial proceedings are absolutely privileged
• Qualified privilege — communications made in discharge of a duty or in protection of a legitimate interest (e.g., employment references) — defeated by malice
• Responsible communication on matters of public interest — established in Grant v Torstar 2009 SCC 61 as a defence for responsible journalism on matters of genuine public interest; replaces the US "actual malice" standard

Ontario Defamation Act

The Defamation Act RSO 1990 c D.6 provides additional protections: s.5 requires notice of action within 6 weeks of publication (for newspapers and broadcasts); s.9 permits mitigation by publication of an apology; s.22 provides absolute privilege for fair and accurate reports of court proceedings. The Protection of Public Participation Act SO 2015 c 23 (Ontario's anti-SLAPP legislation) allows defendants to move for early dismissal of proceedings that arise from expression on matters of public interest where the plaintiff cannot establish substantial merit and the public interest in proceeding does not outweigh the public interest in protecting expression.

Nuisance

Private nuisance protects an occupier's right to reasonable use and enjoyment of land. The defendant's use of their property must cause unreasonable interference with the plaintiff's enjoyment of their property. Unreasonableness is assessed by balancing the gravity of harm against the utility of the defendant's conduct — the locality of the area, the sensitivity of the plaintiff, and the character of the neighbourhood are all relevant.

Strict liability under Rylands v Fletcher (1868) LR 3 HL 330 — for non-natural use of land involving dangerous things likely to do mischief if they escape — has been recognized in Ontario courts but narrowly applied. The SCC in Tock v St John's Metropolitan Area Board [1989] 2 SCR 1181 preserved Rylands v Fletcher strict liability while acknowledging the debate about its future in Canada.