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 the twentieth century, no judge or lawyer could

have foreseen the substantial expansion and evolution of the Canadian

law of torts that would take place in the following hundred years. We

are not in any better position today to predict what the rem ainder of this

century will 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 dynamism 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 mechanisms that threaten to marginalize 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 path 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. Virtually all activities that 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 Century469

of care, and the courts continue to expand liability to new interests,

activities, and losses. 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 torts have, for example, been heav-

ily diluted by fault concepts, most notably in the def‌inition of non-nat-

ural use in the rule 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 have

been transformed from torts of strict liability to torts requiring proof

of wrongdoing. The tort of nuisance exhibits some characteristics 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 rising tide of fault liability. Nevertheless, the twen-

tieth century was the century of the tort of negligence and its inf‌luence

will be felt long into this century.

B. THE DYNAMISM OF THE TORT OF

NEGLIGENCE

The dominance of the tort of negligence is due, in part, to the expan-

sionary forces unleashed by Donoghue v Stevenson,2Hedley 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 the scope of liability may be

expected in a number of areas.

First, there will be cutting edge cases in areas such as product

design, governmental services, educational services, crime prevention,

business activities, and health care. The recent history 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.