NCA Canadian Common Law Foundations 2 — Questions and Answers
Question 1: The foundational case for negligence in Canadian law is Donoghue v. Stevenson [1932]. Which concept did Lord Atkin articulate that forms the basis of the duty of care?
- The 'but for' test for causation
- The 'neighbour principle'—one must take reasonable care to avoid acts or omissions that could reasonably be expected to injure one's neighbours (Correct answer)
- The reasonable person standard for breach
- The eggshell skull rule for remoteness
Correct answer: The 'neighbour principle'—one must take reasonable care to avoid acts or omissions that could reasonably be expected to injure one's neighbours
Lord Atkin's neighbour principle asks: who in law is my neighbour? Persons so closely and directly affected by my acts that I ought reasonably to have them in mind when directing my acts or omissions. This became the seed of modern duty of care analysis.
Question 2: The Canadian test for establishing a duty of care in negligence cases was reformulated by the SCC in which case, building on Anns v. Merton London Borough Council?
- Cooper v. Hobart [2001] (Correct answer)
- Jordan House Ltd. v. Menow [1974]
- Stewart v. Pettie [1995]
- Childs v. Desormeaux [2006]
Correct answer: Cooper v. Hobart [2001]
Cooper v. Hobart [2001] (along with Edwards v. Law Society of Upper Canada) refined the Anns/Cooper test: (1) Is there a sufficiently close relationship (proximity) to give rise to a prima facie duty? (2) Are there policy reasons to negate or limit the duty? This is the standard Canadian test.
Question 3: In the law of torts, the 'eggshell skull' rule (thin skull rule) provides that:
- A defendant is only liable for foreseeable harm
- A defendant must take the plaintiff as found and is liable for the full extent of harm even if the plaintiff's particular vulnerability was unforeseeable (Correct answer)
- A plaintiff who is especially vulnerable cannot recover more than an ordinary plaintiff would
- The defendant must have known of the plaintiff's vulnerability to be liable
Correct answer: A defendant must take the plaintiff as found and is liable for the full extent of harm even if the plaintiff's particular vulnerability was unforeseeable
The thin skull (eggshell skull) rule holds that a tortfeasor takes the victim as they find them. If the defendant's negligent act triggers an unforeseeable injury due to the plaintiff's pre-existing condition, the defendant is liable for the full extent of harm. This is distinct from the 'crumbling skull' doctrine.
Question 4: Under Canadian tort law, which test for causation applies in most negligence cases?
- The material contribution test
- The 'but for' test—the plaintiff must prove that but for the defendant's negligence, the harm would not have occurred (Correct answer)
- The balance of probabilities test adopted from criminal law
- The reasonable foreseeability test
Correct answer: The 'but for' test—the plaintiff must prove that but for the defendant's negligence, the harm would not have occurred
The 'but for' test is the primary causation standard in Canadian negligence law (Athey v. Leonati [1996]; Clements v. Clements [2012]). The material contribution test is reserved for cases where it is impossible to apply 'but for' due to multiple independent sufficient causes.
Question 5: The defence of contributory negligence in Canadian common law provinces:
- Completely bars the plaintiff's claim if the plaintiff was partly at fault
- Reduces the plaintiff's damages proportionately to the plaintiff's degree of fault under contributory negligence legislation (Correct answer)
- Only applies when the plaintiff's fault exceeds 50%
- Is no longer available in any Canadian province
Correct answer: Reduces the plaintiff's damages proportionately to the plaintiff's degree of fault under contributory negligence legislation
All common law provinces have enacted contributory negligence or tortfeasors acts that replace the old common law complete bar with apportionment. Damages are reduced in proportion to the plaintiff's contributory fault—a plaintiff 30% at fault recovers 70% of damages.
Question 6: Which of the following statements about occupiers' liability in Canadian common law provinces is correct?
- The common law categories of invitee, licensee, and trespasser still apply in all Canadian provinces
- Most provinces have enacted occupiers' liability legislation replacing the common law categories with a single reasonable care standard (Correct answer)
- Trespassers can never recover damages from occupiers in Canada
- The standard of care for all entrants is identical regardless of their reason for being on the property
Correct answer: Most provinces have enacted occupiers' liability legislation replacing the common law categories with a single reasonable care standard
Most Canadian common law provinces (Ontario, BC, Alberta, Manitoba, Nova Scotia, PEI) have enacted occupiers' liability acts replacing the three common law categories with a unified duty of reasonable care. Some provinces retain modified common law categories.
NCA Canadian Common Law Foundations 2
The foundational case for negligence in Canadian law is Donoghue v.
Stevenson [1932].
Which concept did Lord Atkin articulate that forms the basis of the duty of care?