D. Reform and Modernization

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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In the latter part of the twentieth century, the Supreme Court paid a lot of attention to the reform and modernization of tort law. This was long overdue. Tort law carried a great deal of historical baggage into the

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twentieth century and much has been done, in an incremental way, to adjust tort law to modern Canadian realities.

Not surprisingly, much of the change has taken place in the tort of negligence. The Supreme Court has developed an authoritative framework - first under the Anns/Kamloops principle and now under Anns/ Cooper - for the determination of a duty of care. It has also provided guidance on other foundational elements of the tort of negligence, such as causation, proof of fault, and remoteness of damage. The Court has also reworked the defences to negligence liability to promote the compensatory policies of modern tort law. The defence of voluntary assumption of risk has been narrowed and, for all practical purposes, the defence of illegality has been eclipsed. The Court has also played a strong role in reforming the assessment of damages rules in personal injury and fatality litigation. A number of more specific issues have also been addressed, such as product warnings, product quality, breach of statutory duty, informed consent to medical treatment, governmental liability, and liability for economic loss.

There is, however, a great deal of work left to be done in this century. The rules relating to the negligent infliction of nervous shock are unsatisfactory. The law relating to the intentional interference with chattels is unduly complex. The torts of intentional interference with the person are replete with oddities and anachronisms ranging from concepts such as directness and the reverse onus of proof of wrongdoing to the failure to provide sufficient protection of dignitary interests such as equality and freedom from both harassment and mental distress. The further development of the nascent tort of privacy is needed in those jurisdictions without privacy acts and clarification of the relationship between the tort of intentional interference with...

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