Negligence law is a critical area of tort law that remedies individuals who have suffered damages where someone failed to exercise reasonable care. Accordingly, negligence law forms the basis of many personal injury claims in Canada.

In order to establish negligence, the plaintiff must prove that the defendant owed them a duty of care, that the defendant breached the standard of care expected of a reasonable person in their position, this breach of the standard of care caused the plaintiff injury and the plaintiff suffered damages as a result. 

Duty of care

A duty of care arises in particular circumstances. Essentially, the defendant owes a duty of care to those who the defendant might reasonably foresee as being adversely affected by their failure to take care. As explained in Anns v Merton London Borough Council, as modified by the Supreme Court of Canada in Cooper v Hobart, two question arise under the duty of care analysis:

1. Was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and

2. Are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?

The proximity analysis involved at the first stage of the Anns test focuses on the factors arising from the relationship between the plaintiff and the defendant. Once foreseeability and proximity is established at the first stage, a prima facie duty of care arises. There also may be, in some circumstances, policy considerations that would limit a finding of there being a duty of care.

Standard of care

If a duty of care is found to exist, the court determines whether the Defendant’s acts or omissions fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances. What is considered reasonable depends on various factors, for example:

1. The likelihood of a known or foreseeable harm;

2. The gravity of the harm;

3. The burden or cost to prevent the injury;

4. Prevailing custom at the time;

5. Industry practice;

6. Statutory or regulatory standards.

Causation & Damages

Once the standard of care is determined, the plaintiff must show that the breach of the standard of care caused the alleged damages. To prove this, the plaintiff must show that the injury would not have occurred “but for” the defendant’s conduct. Once causation is established, the damages must arise as a result.

A cautionary note, the materials on this website provide an overview and does not constitute legal advice. Readings are cautioned against making any decisions based on this material alone. Rather, Speicifc legal advice should be obtained.