1. « Torts » Geneviève Saumier Faculté de droit McGill 20 April 2010 Continuing Education Series 2009-2010 "Think Ahead – Une pensée d’avance" Common Law: A Distinct Legal Tradition

2. Who cares? Three reasons why you should. - Extra-contractual liability is: - Unavoidable - Inescapable - Not affected by borders

3. Three examples of the « distinct » law of torts Example no. 1 – « pure economic loss » Your client sells products outside of Quebec: - As a result of a third party’s action, you do not receive a contractual bonus resulting from the sale of your product to a US buyer (Spar Aerospace v. Hughes Aircraft et al., SCC)

4. Three examples Example no.2 : « liability of public authorities » Your Quebec client is included in a class action in Ontario against the federal government for failure to regulate a medical device (Attis v. Health Canada – Ont. C.A.)

5. Three examples Example no. 3 – « duty to rescue » Your client is injured outside Quebec – While skiing in B.C., your client and his wife get lost and no rescue is undertaken such that the wife dies and the client suffers physical and emotional injury – (Blackburn v. B.C. et al, before the BC courts)

6. Primer on the law of torts No general clause like art. 1457 CCQ (1053 CCBC) Historical development through writ system – Notion of « nominate torts » Torts involving intentional interference with protected interest; typically no need to show fault - physical/body: battery, assault, malicious prosecution - land/property: trespass, nuisance, conversion - economic: deceit, passing off, conspiracy

7. Primer on law of torts Main modern tort: Tort of Negligence - careless/negligent interference with protected interests - closest equivalent to 1457 CCQ - has tended to encroach on other torts Most likely source of liability exposure for private and commercial clients

8. Basic elements of Tort of Negligence Fault / Reasonable person Causal link Damage/Injury Duty of care Remoteness of damage

9. Comfort zone: Fault Standard: reasonable person in the circumstances Criteria: foreseeability and probability of harm; required precautions Approach: balancing; cost/benefit

10. Comfort zone: Fault Considerations include: - expertise of defendant (professional) - competence (child; incapable adult) - statutory norms (regulated activities)

11. Comfort zone: causal link Defendant must have « caused » the plaintiff’s injury - scientific uncertainty (medical) - multiple causes and actors

12. Distinct elements Damage/Injury Duty of care Remoteness of damage

13. Distinct elements Damage / Injury / Préjudice Art. 1457 CCQ « bodily, moral or material…injury » Nominate torts: address specific types of injuries caused in specific manner - intentional interference with body: battery - negligent interference with body: negligence

14. Distinct element: Injury Example: « pure economic loss » - injury not involving any damage to person or property Spar Aerospace case Why sue in Quebec? - no limitation on claim in pure economic loss

15. Distinct element: Injury Rationale: Risk of « liability in an indeterminate amount for an indeterminate time to an indeterminate class » Narrowly circumscribed Specific categories Essentially requires assumption of responsibility and reasonable reliance

16. Back to Spar Aerospace Case went to SCC on issue of jurisdiction of Quebec courts Nature of injury key to the decision to sue in Quebec in relation to claim arising from activity outside the province

17. Basic elements of Tort of Negligence Fault / Reasonable person Causal link Damage/Injury Duty of care Remoteness of damage

18. Distinct element: Duty of Care Duty of care Key element of Tort of Negligence Needed to establish the relationship of obligation between the parties

19. Distinct element: Duty of Care Duty of care: control device Defines the contours of the law of negligence Commonly used as a DEFENCE to a claim

20. Distinct element: Duty of Care The famouse case of Donoghue v. Stevenson a.k.a. « the snail in the ginger beer case » (House of Lords, 1932, esp. Lord Atkin)

22. Distinct element: Duty of Care Modern SCC formulation (Cooper v Hobart, 2001) 2-stage inquiry: (i) The first question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care.

23. Distinct element: Duty of Care Modern SCC formulation (Cooper v Hobart, 2001) 2-stage inquiry: (ii) The second question is whether there are other reasons of broad policy that suggest that the duty of care should not be recognized.

24. Distinct element: Duty of Care Example no.2 : « liability of public authorities » Your Quebec client is a member in a class action in Ontario against the federal government for failure to regulate a medical device : should she opt out? (Attis v. Health Canada – Ont. C.A.)

25. Distinct element: Duty of Care Question: Is the federal regulator liable to women who received defective breast implants? Answer: Not unless the regulator owes them a duty of care

26. Distinct element: Duty of Care Summary dismissal sought Ontario C.A.: « no duty owed » Dismissal granted; leave to appeal to SCC refused

27. Distinct element: Duty of Care Argument: Statutory duty is owed to general public not to individuals – no proximity Also: Regulator must balance competing interests in approving medical devices Recourse against manufacturer available

28. Distinct element: Duty of Care Example no. 3 – « duty to rescue » Your client is injured outside Quebec – While skiing in B.C., your client and his wife get lost and the rescue operation is too late – the wife dies and the husband is injured – (Blackburn v. B.C. et al, before the BC courts)

29. Distinct element: Duty of Care - No general duty to rescue - Unless « special relationship » between the parties - Compare Art. 2, Quebec Charter - « good Samaritan » obligation

30. Basic elements of Tort of Negligence Fault / Reasonable person Causal link Damage/Injury Duty of care Remoteness of damage

31. Distinct element: Remoteness Acts as a defence or limit to liability Restricts the loss for which defendant is liable based on a foreseeability requirement Contrast with art. 1607 CCQ: « direct and immediate cause »

32. Distinct element: Remoteness Criticized for lack of specificity and inconsistency in application Often difficult to distinguish from foreseeability going to fault or even with duty of care Best understood as answer to argument of directness in causation inquiry

33. Lessons? Why you should care: Avoid mistaken assumptions about diversity or similarity of laws across borders Understand approach of opposing counsel in cross-border cases Give better advice to clients involved in foreign or cross-border activity

34. « Torts » Geneviève Saumier Faculté de droit McGill 20 April 2010 Continuing Education Series 2009-2010 "Think Ahead – Une pensée d’avance" Common Law: A Distinct Legal Tradition