The Canadian Law of Torts in the Twenty-First Century

AuthorPhilip H. Osborne
At the beginning of t he twentieth century, no judge or lawyer could
have foreseen the substantial expansion and evolution of the Canadi an
law of torts that would take place in t he following hundred years. We
are not in any better position today to predict what the rem ainder of this
century wil l bring. Nevertheless, there are certain trends and themes
in Canadian tort law that are likely to be inf‌luential in its development
and evolution. These themes include the centrality and dominance of
the tort of negligence, the dynami sm and expansionary nature of the
tort of negligence, the incremental dri ft towards a greater generalization
and integration of tort rules, the reform and modernization of tort law,
the dominance of the compensatory function of tort law, and the rise of
alternative and supplementary legal and non-legal compensatory and
deterrent mechanism s that threaten to ma rginalize and diminish the
importance of tort law. Not all of these themes are discrete phenomena
and not all of them point in the same direction, but they each warrant
some attention in anticipating the future pat h of Canadian tort law.
In the twentieth centur y the tort of negligence blossomed into the dom-
inant f‌ield of tort liability. Virtual ly all activities t hat carry a risk of
personal injury or propert y damage are now subject to the general duty
The Canadia n Law of Torts in the Twenty-First Century 469
of care, and the courts continue to expand liability to new interest s,
activities, and losse s. The dominance of the tort of negligence is also
indicated by the extent of the intrusion of fault concepts into other
areas of tort law. The strict liability tort s have, for example, been heav-
ily diluted by fault concepts, most notably in the def‌inition of non-nat-
ural use in the r ule in Rylands v Fletcher,1 the requirement of a loss of
control of the animal in the scienter action, and in the interpretation
of the defences. The torts of trespass to person, chattels, and land h ave
been transformed from torts of strict liability to tor ts requiring proof
of wrongdoing. The tort of nuisance exhibits some character istics of
fault liability. This is most apparent in the principles controlling the
responsibility of a landowner for a private nuisance created by a third
party, the remoteness of damage rule (foreseeability), and the uneven
trend towards fault in respect of personal injuries caused by a public
nuisance on the highway. Some areas of tort law, such as defamation,
have withstood the r ising tide of fault liabilit y. Nevertheless, the twen-
tieth century was the century of the tort of negligence and its inf‌luence
will be felt long into this century.
The dominance of the tort of negligence is due, in part, to the ex pan-
sionary forces unleashed by Donoghue v Stevenson,2 Hedley Byrne & Co
Ltd v Heller & Partners Ltd,3 and Anns v Merton Lond on Borough Council.4
No other area of Canadian tort law has displayed the vitality of negli-
gence law, and while Cooper v Hobart5 has slowed its advance, there is
little evidence to suggest that its capacity for growth is spent. Further
growth in the amount of litigation and t he scope of liability may be
expected in a number of area s.
First, there will be cutting edge cases i n areas such as product
design, governmental ser vices, educational services, cri me prevention,
business activities, and health care. The recent histor y of the tort of
negligence has been one of incremental expansion and that is likely to
be its foreseeable future. There are also a number of current activities
1 (1868), LR 3 HL 330, aff’g (sub nom Fletcher v Rylan ds) (1866), LR 1 Ex 265 (Ex Ch).
2 M’Alister (or Donoghue) v Stevenso n, [1932] AC 562 (HL) [Donoghue].
3 [1964] AC 465 (HL).
4 [1978] AC 728 (HL).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT