The Canadian Law of Torts in the Twenty-First Century

• Author: Philip H. Osborne
• Pages: 468-483

468

CONCLUSION

THE CANADIAN LAW

OF TORTS IN THE

TWENTY‑FIRST CENTURY

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.

A. THE CENTR ALITY OF THE TORT OF

NEGLIGENCE

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.

B. T HE DYNAMISM OF THE TORT OF

NEGLIGENCE

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).

5 [2001] 3 SCR 537.