Negligence Act in Ontario

By Brian Madigan LL.B.

The Purpose

The Negligence Act deals with the matter of apportionment in the field of torts.

Tort law considers the liability of a party to another for wrongdoing whether intentional or not, where the injured party has suffered a measurable loss either physically or to their property. Examples of torts include assault and battery, libel and slander, defamation, negligence, nuisance and the economic interference with contractual relationships. In addition, there are statutory torts and economic torts. Nevertheless, they all involve the breach of a duty or obligation owed to third parties.

One category of torts is the law of negligence, and it is by far the most common. Car accidents would be the dominant example. An activity is considered to be negligent if

1)    there is a duty of care that is owed,

2)    the person has fallen below the appropriate standard of care, and

3)    the activity results in some harm to a third party.

There is no such thing as “negligence in the air”. Bad driving itself may be punishable under the provincial Highway Traffic Act and the Criminal Code, but it is not a “tort” until someone is injured or their property is damaged.

The Supreme Court of Canada has permitted tort claims and contract claims arising out of the same matter to be consolidated and litigated in one action. The plaintiff is not required to elect as between tort or contractual damages until the end of trial.

This makes the Negligence Act quite relevant for the purposes of real estate issues. It is often overlooked.

Brian Madigan LL.B., Broker

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