2. Negligence

This section addresses the common law tort of negligence as it exists in all provinces and territories of Canada except Quebec. Under the Civil Code of Quebec, actions arising from negligence can be brought as actions for extra-contractual liability, and this is discussed in Section VIII, 4 of this Guide.

2.1 Elements

To establish a common law cause of action for negligence, a plaintiff must prove that the:

  • Defendant owed him or her a duty of care.


  • Defendant breached that duty.


  • Plaintiff suffered damage resulting from the breach.

2.2 Duty of Care

Whether or not a potential defendant owes a plaintiff a duty to take care is based on the neighbour principle — the law requires persons to take reasonable care to avoid acts or omissions which can be reasonably foreseen as likely to injure their neighbours.

To determine who, in law, is a neighbour, the following two questions must be considered:
  1. Is there a sufficiently close relationship between the parties so that, in the reasonable contemplation of the defendant, carelessness on its part might cause damage to that person? If so,


  2. Are there any considerations which ought to negate or limit:

    (a) the scope of the duty;

    (b) the class of persons to whom it is owed;

    (c) the damages to which a breach of it may give rise?

In considering the second part of the two-part test, the Supreme Court of Canada has indicated that policy issues should be taken into consideration in determining whether any factors exist which justify denying liability. Policy issues to be considered include, among other things, the effect of recognizing the duty of care on legal obligations generally, the impact on the legal system and any general societal effect of imposing liability.

The courts repeatedly emphasize that the categories of negligence are not closed and that a novel theory of duty must be assessed against the two-part test set out above.

2.3 Standard of Care

The standard of care is the measure against which the defendant’s conduct is assessed. It is an objective measure. In considering whether the standard of care was breached, the courts use the fictional reasonable person. That is, the question is whether the conduct complained of fell below the standard of conduct of a reasonable person similarly situated.

The reasonable person standard has been diluted for certain types of less capable actors such as children, youth and those under a disability. The reasonable person standard has also been strengthened for certain individuals of superior capacity. Professional people, for example, cannot escape liability by performing merely up to the capacity of the ordinarily prudent lay person. A lawyer is obliged to act like a reasonably prudent lawyer and a medical doctor is obliged to act like a reasonably prudent doctor. Rather than asking whether the performance was to the best of any particular defendant’s ability, the courts assess whether the defendant’s conduct was up to the standard of a person of average competence in exercising their particular profession.

In considering whether any particular conduct is negligent, the court can consider any relevant prevailing custom or behaviour. Those who act in accordance with the general practice of their trade, industry, or profession often avoid civil liability. However, it is also possible for a court to find that the prevailing custom or practice itself falls below the required standard of care and following such a prevailing custom or practice will not avoid a finding of breach.

A statute setting out the conduct required of a particular profession or in particular circumstances may provide a useful standard of reasonable conduct and some evidence of a breach, but does not provide prima facie evidence of negligence. A violation of a statute alone does not equate to liability.

2.4 Burden of Proof

The plaintiff must plead and prove negligence on the balance of probabilities to succeed in an action for negligence. The maxim res ipsa loquitur (“the thing speaks for itself”) has been rejected in Canada.

2.5 Damage and Causation

There can be no liability for negligence unless some damage has been suffered by the plaintiff. The specific breach of the standard of care must be the conduct that gives rise to the damage. The courts have declared that causation need not be proven with “scientific precision” although the question of causation must be proved to the satisfaction of the court on the balance of probabilities. The most commonly employed technique for determining causation is the “but for test” – if the accident would not have occurred but for the defendant’s negligence, the defendant’s conduct is a cause of the injury.

In circumstances where there may be more than one cause of an accident, defendants who cause losses cannot be excused merely because other causes or factors have helped to produce the harm. It is sufficient if the defendant’s negligence was a cause of the harm. If the acts of two people are both substantial factors in bringing about the result, then liability is imposed on both people on the theory that both “materially contributed to the occurrence”.

2.6 Remoteness

There is no specific formula to be applied in determining whether any particular damage is too remote to be recovered. While there are specific rules for recurring situations which often arise, the more general approach to the question of remoteness is a pragmatic one — in the chain of cause and effect, when can the consequences of an act no longer be fairly accepted as attributable to the defendant’s act?

The most common recurring situations in assessing remoteness include:
  • Thin-skulled plaintiffs (negligent defendants must take their victims as they find them).

  • The rescuer (a negligent wrongdoer is liable to reimburse a rescuer for losses incurred during a rescue attempt).

  • Intervening forces (wrongdoers are not immune from responsibility even if there are intervening forces. The question becomes whether it is fair to hold a negligent actor as liable when the conduct of others is also involved in bringing about the accident).

2.7 Contributory Negligence

If the plaintiff’s own negligence contributes to a loss, the right to recover damages for negligence is affected. The court will attempt to quantify the relative degrees of responsibility for the damage as between the wrongdoer and the contributorily negligent plaintiff and the defendant will be liable for only that portion of the damages attributable to his or her degree of responsibility.

Back to Top