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Tort Law

Updated for 2010 Changes to the Professional Engineers Act

These web pages have been updated to include both enacted and pending changes due to the Open for Business Act, 2010. Note that some changes will not be in force until proclaimed by the Lieutenant Governor; for example, the putting into force the end of the industrial exemption has been delayed numerous times.

Disclaimer

All information on this website is provided without any warranty to its correctness. The material on these pages reflects Douglas Wilhelm Harder's best judgment in light of the information available to him at the time of its preparation. Any use which a third party makes of these pages, on any reliance on or decision to be made based on it, are the responsibility of such third parties. Douglas W. Harder accepts no responsibility for damages, if any, suffered by any third party as a result of decisions made or actions based on these pages.

A set of PowerPoint slides are available at Tort.pptx, but the reader is advised that the discussion related to the presentation is just as important as the slides themselves.

To explain the concept of tort, we must first understand the place of the Criminal Code of Canada and other statutes.

Crime

When an individual or organization contravenes an article of the Criminal Code, it is the responsibility of the government to try that party in a court of law. A breach of the Criminal Code is said to be a crime and the trying of such an offence at a criminal trial may end in a verdict of guilty and a conviction at which point the court must decide upon an appropriate sentence. When the verdict in a criminal trial is not guilty, the defendant is said to be acquitted. When an innocent person is wrongly convicted, it is said to be a miscarriage of justice.

Offences

Statutes such as the Professional Engineers Act, on the other hand, govern the relationship between individuals and the states. A contravention of a breach of a section or clause of a statute is guilty of an offence (as opposed to a crime). For example, Section 40(1) of the Professional Engineers Act reads:

Penalties
40.(1) Every person who contravenes section 12 is guilty of an offence and on conviction is liable for the first offence to a fine of not more than $25,000 and for each subsequent offence to a fine of not more than $50,000.

The penalty for an offence is usually a fine. The balance of section 40 lists other offences relevant to the Professional Engineers Act.

Breaches in Contract and in Tort

Finally, laws which govern the relationship between individuals within the state cover contracts (legally enforceable agreements) between individuals and a duty of care between individuals. Contract law is discussed elsewhere; however, it is possible for one party to injure another outside of a contract and such an injury is said to be a tort. The party causing the injury is said to be the tortfeasor.

Purpose of Tort Law

The purpose of tort law is to compensate the injured party; it is not to punish the tortfeasor. There are circumstances, however, where an individual may be liable both in tort and at the same time may be guilty of an an offence or a crime. The penalty for causing an offence or a crime may be a fine or a sentence, but this will not compensate the injured party for the injury caused by the tortfeasor. We will consider the case, however, where a party may be concurrently liable in both contract and in tort.

Intentional and Unintentional Torts

There are two forms of torts: intentional torts and unintentional torts. The first category includes:

  • torts of nuisance where one individual interferes with another's enjoyment of that person's real property,
  • torts of defamation including written or broadcast (libel) or verbal (slander) where untrue statements damage the reputation of another, and
  • occupier's liability.

Marston discusses these other intentional torts on pp.64-65. All of these intentional torts are the result of a purposeful action on the part of one party against another.

The Unintentional Tort of Negligence

However, there is one unintentional tort: negligence. Whereas intentional torts have been the cause of actions for many centuries if not millennia, the possiblity that one party may unintentionally injure another is relatively new:

The 1932 case of Donoghue v. Stevenson is a case where the plaintiff, May Donoghue brought an action against the manufacturer of a bottle of ginger beer produced by the defendant David Stevenson which contained a decomposed snail. The ginger beer was purchased by Ms. Donoghue's friend and therefore Ms. Donoghue did not even have a contract between her and the owner of the Wellmeadow Cafe. Ms. Donoghue consumed part of the beverage as part of a sundae before the snail was discovered which was before her friend had consumed any of the drink. Thus, her friend who had a contract with the establishment was not ill. The determination by the House of Lords that Mr. Stevenson was liable to Ms. Donoghue resulted in a new form of product liability.

This form of product liability has since evolved into the unintentional tort of negligence.

In a tort action of negligence where an injured party (the plaintiff) brings an action against a defendant for liability in tort, the test to determine whether or not the defendant is liable in tort depends on three conditions. Marston, on p.39, provides a useful rewording of a the concept of tort liability within English law:

  1. the defendant owed the plaintiff a duty of care,
  2. the defendant breached that duty by his or her conduct, and
  3. the defendant's conduct caused the injury to the plaintiff.

If any one of these three conditions is not satisfied, the tort action will fail.

Negligence and the Professional Engineer

A professional engineer in the practice of his or her profession may be negligent in their actions. Ontario Regulation 941 defines negligence within the scope of professional engineering in Section 72(1):

72. (1) In this section..."negligence" means an act or an omission in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.

This is based on an extract from Halsbury's Laws of England (referenced by Marston):

It is trite law that an engineer is liable for incompetence, carelessness or negligence which results in damages to his employer and he is in the same position as any other professional or skilled person who undertakes his professional work for reward and is therefore responsible if he does or omits to do his professional undertaking with an ordinary and reasonable degree of care and skill.

Thus, if any party is injured as a result of the negligent actions of a professional engineer, that practitioner may be liable in tort to the injured party.

Allegations of Professional Misconduct

In the definition of professional conduct in Section 72 (2), the first first point is:

72. (2)(a) For the purpose of this Act and this Regulation, "professional misconduct" means negligence, ...

Therefore, a professional engineer who, within the practice of his or her profession, is guilty of a tort of negligence must be concurrently guilty of professional misconduct which has separate penalties listed in the Professional Engineer's Act:

Powers of Discipline Committee
28. (4) Where the Discipline Committee finds a member of the Association or a holder of a certificate of authorization, a temporary licence, a provisional licence or a limited licence guilty of professional misconduct or to be incompetent it may, by order,...

Limitations on the Tort Liability

The concept that a party may be liable in tort as a result of a negligent misstatement is even more recent. Previous to 1963, if a party makes a statement outside of a contract and another party relies on that statement, the party making the statement did not owe a duty of care to the relying party and therefore could not be liable in tort.

This changed in 1963 with the case of Hedley Bryne & Co. Ltd. v. Heller & Partners Ltd. where the plaintiff requested information from the defendant about the credit-worthiness of a potential client. The defendant responded with a statement that the potential client was "considered good for its ordinary business engagements." No consideration was attached with this letter and therefore it could not be considered a contract. A short time later, the client went into liquidation and the plaintiff lost £17,000 and therefore initiated this action. In its ruling, the House of Lords stated that

"I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by...words can make no difference. Furthermore, if...a person is so placed that others could reasonably rely upon his judgment or his skill..., a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.

The only statement which prevented Heller from being liable in tort was the singular statement "without responsibility on the part of this bank". The House of Lords found that

"...in my judgment, the bank..., by the words which they employed, effectively disclaimed any assumption of a duty of care. They stated that they only responded to the inquiry on the basis that their reply was without responsibility. If the inquirers chose to receive and act upon the reply they cannot disregard the definite terms upon which it was given. They cannot accept a reply given with a stipulation and then reject the stipulation. Furthermore, within accepted principles...the words employed were apt to exclude any liability for negligence."

An Ontario Court Case Confirming Bryne v. Heller

The 1994 case of Wolverine Tube (Canada) Inc. v. Noranda Metal Industries Ltd. et al. confirms that it is possible to limit the duty of care and therefore the liability in tort. The environment consultant had produced a report regarding lands owned by Noranda for that company. That report was later relied upon by the plaintiff when purchasing the land and when the report was found to contain errors, the plaintiff launched an action claiming liability in tort. Again, the only defence was a statement included at the front of the report:

This report was prepared by Arthur D. Little of Canada, Limited for the account of Noranda, Inc. The material in it reflects Arthur D. Little's best judgment in light of the information available to it at the time of preparation. Any use which a third party makes of this report, on any reliance on or decision to be made based on it, are the responsibility of such third parties. Arthur D. Little accepts no responsibility for damages, if any, suffered by any third party as a result of decisions made or actions based on this report.

The court found that this disclaimer was sufficient to "insulate" the defendant from the liability in tort; that is, the defendant had clearly stated the limitations of whom the report was to be used by and clearly disclaimed any other responsibility.

Summary of other Tort Cases

In the case Unit Farm Concrete Products Ltd. v. Eckerlea Acres Ltd. et al.; Camama Contracting Ltd. v. Huffman et al. (Marston p.46-48), the engineer made, without a disclaimer, a positive comment on a set of plans which was accepted as a professional approval by the recipient. The plans were deficient and the engineering was held, in the Camama case, partially liable for 75% of the liability in tort.

In the case SEDCO and Hospital Laundry Services of Regina v. William Kelly Holdings Ltd. et al., the plaintiff contracted an architect who subcontracted the mechanical design of a building to mechanical engineers. The design was deficient (a faulty cooling system) through negligence and the plaintiff was able to successfully bring an action for liability in tort against the mechanical engineers for the breach of a duty of care to the future occupants of the building.

The 1993 Supreme Court of Canada case Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd. demonstrates that a professional engineer is liable in tort for deficient designs through negligence resulting in an injury to a contractor relying on those designs even if there is no contractual relationship between the engineer and the contractor.

Other Topics Covered in Marston

To be finished.

References