A. Introduction

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 341-342

Page 341

The distinguishing feature of the strict liability torts is that there is no need to prove that the defendant was guilty of any wrongful (intentional or negligent) conduct. In the absence of defences, proof that the defendant caused the plaintiff’s loss in the manner prescribed is sufficient to impose liability. Strict liability does not play a significant formal role in modern Canadian tort law. Historically, the evolution of the common law of torts has been from strict liability to fault liability. Consequently, the remaining areas of strict liability tend to be ancient and few in number. Moreover, those torts of strict liability that do survive were eroded in the course of the twentieth century by the relentless expansion of the tort of negligence.

The torts of strict liability include the rule in Rylands v. Fletcher, liability for fire, the scienter action for damage caused by dangerous animals, and cattle trespass. It is also conventional to include in this list vicarious liability even though it is not a discrete tort. It imposes a strict liability for the torts of others with whom the defendant has a particular relationship.

These few remnants of true strict liability do not, however, tell the full story of strict liability in Canadian tort law. The formal decline of the discrete strict liability torts has been matched by a rise in a de facto strict liability under the guise of strict standards of care within the tort of negligence. This is particularly evident in the fields of motor-vehicle

Page 342

accidents, product accidents, and accidents arising from dangerous activities. This is not entirely surprising because strict liability continues to have some functional attraction in modern tort law. It can optimize both the deterrent and the compensatory impact of tort law by demanding exceptional care and expanding the range of persons who receive compensation. It can improve the administrative efficiency of tort law by eliminating the often difficult task of determining fault. It can also be used to create an enterprise liability, which allocates the full losses generated by a particular activity or enterprise (such as manufacturing, railroad or air...