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Torts

Journal

Osgoode Hall Law School of York University

Articles 1 - 12 of 12

Full-Text Articles in Law

Material Contribution To Justice - Toxic Causation After Resurfice Corp. V. Hanke, Lynda M. Collins, Heather Mcleod-Kilmurray Jul 2010

Material Contribution To Justice - Toxic Causation After Resurfice Corp. V. Hanke, Lynda M. Collins, Heather Mcleod-Kilmurray

Osgoode Hall Law Journal

The vast universe of chemicals in the Canadian environment is presently understood only poorly by science. For many thousands of chemicals, important data regarding chronic toxicity are lacking. As a result, the requirement that the plaintiff in a negligence action prove causation of illness on a but-for standard has frequently been unattainable. In Resurfice Corp. v. Hanke, the Supreme Court of Canada articulated an important exception to the but-for test. In circumstances where but-for causation is unprovable due to limits in scientific knowledge, proof that a defendant materially contributed to the plaintiff's risk of incurring the type of injury that …

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Chasing Reputation: The Argument For Differential Treatment Of Public Figures In Canadian Defamation Law, Bob Tarantino Jul 2010

Chasing Reputation: The Argument For Differential Treatment Of Public Figures In Canadian Defamation Law, Bob Tarantino

Osgoode Hall Law Journal

When comparing the seminal Supreme Court of Canada defamation decisions of the 1990s and 2000s, it is apparent that the Court's view on the importance of protecting reputation has changed. Recent decisions hail the importance of using freedom of expression as a countervailing interest against the oft-criticized strictures of the common law of defamation. Fundamental alterations in the nature of mass and interactive media and in the nature of reputation are two phenomena informing this change. Increased attention to the theorizing of "reputation," the interest whose protection animates the entire tort of defamation, reveals that reputation is itself a highly …

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Normativity, Fairness, And The Problem Of Factual Uncertainty, Andrew Botterell, Christopher Essert Oct 2009

Normativity, Fairness, And The Problem Of Factual Uncertainty, Andrew Botterell, Christopher Essert

Osgoode Hall Law Journal

This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law's insistence that fair terms of interaction be maintained between individuals--a requirement that typically manifests itself in the need for the plaintiff to prove factual or "but-for" causation--sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, where the plaintiff suffers the very sort of harm that rendered the risk unreasonable, and where the plaintiff cannot …

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Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque Jul 2008

Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque

Osgoode Hall Law Journal

Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation marked the first in-depth inquiry by non-US scholars into transnational human rights litigation. In this article, the author canvasses a range of new developments in the field since its publication in 2001. Of special note are five transnational human rights claims, decided after September 11, that were brought in Canadian and British courts. The author mines these cases for insights into other important developments involving the American Alien Tort Statute (Part I) corporate complicity in human rights abuses (Part II) the expansion of common law jurisdiction to include …

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"Are We There Yet?": Towards A New Rule For Choice Of Law In Tort, Janet Walker Apr 2000

"Are We There Yet?": Towards A New Rule For Choice Of Law In Tort, Janet Walker

Osgoode Hall Law Journal

The Supreme Court's effort to establish certainty in this area by basing a firm rule on a clear theory has failed. The intention was laudable but the proposed theory bore little relation to the courts' adjudicative concerns; and the rule sometimes produced injustice, prompting courts to circumvent it. This article considers the brief history of choice of law in tort and recent developments in common law and civil law jurisdictions, and suggests a new theory and a new rule (based on principles of tort law rather than public international law) which are likely to increase certainty by promoting fairness.

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Négligence, Victimes Indirectes Et Préjudice Moral En Common Law: Les Limites A La Réparation Se Justifient-Elles?, Louise Belanger-Hardy Jul 1998

Négligence, Victimes Indirectes Et Préjudice Moral En Common Law: Les Limites A La Réparation Se Justifient-Elles?, Louise Belanger-Hardy

Osgoode Hall Law Journal

Common law courts have traditionally been reluctant to award damages for emotional harm. This is particularly true in cases of secondary victims of negligence. Preoccupied by the fear of fraudulent claims or the danger of opening the floodgates, courts strive to limit the scope of liability in these circumstances. But how legitimate is the reasoning that has served to support such a restrictive analysis of the decision to award damages for emotional harm? The author explores the limitations of the Canadian courts' current approach and analyzes the basis of their concern. She concludes that not only do the beliefs espoused …

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Tort In A Contractual Matrix, John G. Fleming Oct 1995

Tort In A Contractual Matrix, John G. Fleming

Osgoode Hall Law Journal

This article addresses one aspect of the interface between tort and contract: the way tort law is affected, whether by extending or contracting its reach, by the parties coming together against a contractual structure. Two basic situations are considered. The first concerns the effect of a contractual limitation clause on the tort liability of, or to, a third party such as a subcontractor's to the building owner. The second considers what effect to attribute to a plaintiff's failure to protect himself or herself in advance by contracting against the risk

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Strict Products Liability Revisited, Denis W. Boivin Jul 1995

Strict Products Liability Revisited, Denis W. Boivin

Osgoode Hall Law Journal

This article examines the relationship between two concepts found throughout the law of products liability, defect and negligence. Traditional tort doctrine contends that, although they are sometimes used interchangeably, both concepts refer to quite distinct matters: the state of a product, on the one hand, and the nature of a manufacturer's conduct in supplying its products, on the other. The hallmark distinction between a standard of fault and one of strict liability, it is said, is that only the former requires proof of unreasonable care, whereas both require proof of a defect. Relying on developments in the United States and …

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Back To The Future!: Is The "New" Rigid Choice Of Law Rule For Interprovincial Torts Constitutionally Mandated?, Jean-Gabriel Castel Jan 1995

Back To The Future!: Is The "New" Rigid Choice Of Law Rule For Interprovincial Torts Constitutionally Mandated?, Jean-Gabriel Castel

Osgoode Hall Law Journal

In the last few years, the Supreme Court of Canada has held that private international law rules applicable to the jurisdiction of Canadian courts and the recognition and enforcement of the judgments of sister provinces must conform to the demands of territoriality and the principles of order and fairness which flow from the existence of an implied Full Faith and Credit clause in the Canadian Constitution. More recently, the Court has decided that, with respect to choice of law, the ancient lex loci delicti rule is applicable to both interprovincial and foreign torts and that it admits no exceptions in …

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Simple Calculations To Reduce Litigation Costs In Personal Injury Cases: Additional Empirical Support For The Offset Rule, R. A. L. Carter, John P. Palmer Apr 1994

Simple Calculations To Reduce Litigation Costs In Personal Injury Cases: Additional Empirical Support For The Offset Rule, R. A. L. Carter, John P. Palmer

Osgoode Hall Law Journal

This article demonstrates that if the nominal rate of interest equals the growth rate of nominal earnings, then a strong case can be made for calculating lump-sum damage awards by using the offset rule, i.e., by simply multiplying the annual loss by the number of years the loss is expected to continue. An examination of the Canadian data not only supports the offset rule, but also suggests that plaintiffs are being systematically undercompensated by rules currently in use.

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The Efficacy Of The Tort System And Its Alternatives: A Review Of Empirical Evidence, Don Dewees, Michael J. Trebilcock Jan 1992

The Efficacy Of The Tort System And Its Alternatives: A Review Of Empirical Evidence, Don Dewees, Michael J. Trebilcock

Osgoode Hall Law Journal

This paper reviews the existing empirical evidence on the efficacy of the tort system and alternatives to it. The evidence is evaluated against three normative goals: deterrence, corrective justice, and distributive justice. Empirical evidence relating to five major categories of accidents is reviewed: automobile accidents, medical malpractice, product related accidents, environmental injuries, and workplace injuries. In each case, the paper proceeds by reviewing empirical evidence on the deterrence and compensatory properties of the tort system, and then reviews parallel bodies of evidence on regulatory or penal alternatives and on compensatory alternatives to the tort system. The paper concludes that the …

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The Uncertain Promise Of Law: Lessons From Bhopal, Jamie Cassels Jan 1991

The Uncertain Promise Of Law: Lessons From Bhopal, Jamie Cassels

Osgoode Hall Law Journal

This paper describes the course of the litigation following the Bhopal disaster. It begins with a brief description of the various failures in risk assessment and management that gave rise to the hazardous conditions in Bhopal, and then describes in more detail the resulting legal proceedings. Specifying a number of modest criteria against which the success of the litigation can be measured, the paper examines why traditional tort processes are unlikely to succeed in the case of mass hazards. The paper describes and analyzes a number of significant reforms forged by the Indian courts in response to the Bhopal disaster, …

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