LAWS 9 (Mar 10th)

Typed

Finishing up tort

“Neighbour Principle”

• “We owe duty’s to strangers”

• Once we have determined that we do have relationshop with another person, then what is the exctent to which we must help them???”

“In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply.

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This principle establishes a duty of care that is foundational in tort law, emphasizing the importance of considering the potential impact of our actions on others in our immediate vicinity.

Who is our “neighbour”? (risk management)

• • VERY IMPORTANT CASE!!!

Donoghue v. Stevenson (1932) - Ginger Beer and Snail bits • To whom do we owe “a duty of care”? Who is my “neighbor”? • Liability (proximity) extended - Manufacturers owe consumers • • Do “social hosts” bear responsibility for their (drunken) guest’s actions? • “Proximity” of hosts to users of public roads? SCC said no. • "Bro, are you going to be all right?"

Childs v. Desormeaux (2006)

• “Reasonable Foreseeability” ALONE does not necessarily impose duty of care • (Proximity assumes “element of control” (how much do they create of risk of injury?)) •

Mustapha v. Culligan of Canada Ltd. (2008) S.C.C.

“Buzz Buzz” – link to subjective v. objective test (reasonable) • "not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance“ (SCC)

• A smustafa goes to fill his water, he notices that there is a bunch of dead flies in his water

If I both of these of these areas are met then there is a sense of liability

Manufacturers Negligence

• “Duty of Care”

• “Due Diligence” (adequate steps?) •

• CAUTION: HOT COFFEE MAY BE HOT! • WARNING: THIS NUTTY BAR MAY CONTAIN NUTS! Court’s role to determine whether “sufficient information has been provided to potential consumers… whether adequate warnings and instructions were given the plaintiff” i.e. “duty to warn” • Godin v. Wilson Laboratories (1994) – smelly rat

These people used rat poison and caused the dead rats to stink terribly, they could not remove them

Are the manufacture required to express that the dead rats would stink??

Some “Defenses” in Negligence

1. • "She was the author of her own misfortune“ (Tims case below) Contributory negligence (“Comparative fault”)

2. (“Inevitable accident”/ “Act of God”)

• Of horses and house-fires (e.g. Ellis v. Angwyn (1390)) Accident

3. Voluntary assumption of risk

• “volenti non fit injuria” • Lots in Sports cases (e.g. King v. Redlich (1984 (“accept and assume risk”)

4. Statutory authority

• If your responsibility contributed to the risk factor then it will ultimately be your responsibility

Remedies…

• • • Employers? • Parents (“reasonable supervision”)? • Extending responsibility- risk management and predictability Direct and Vicarious liability Compensation (Who pays?) • • Target the “deepest pockets” If liability is found respondent(s) must pay damages to plaintiff (sometimes court costs as well) • Other remedies available (e.g. injunction (stop action))

BIG Issues in Tort

• 1. Does the Tort system meet its goals?

2. Who benefits most from the tort system?

3. Should Torts seek to “denounce” or punish more? (harder to separate criminal and civil law?)

4. Should/could Tort be eliminated? i.e. could society deal with “private wrongs” (damages) differently? Like Criminal law, there are many: here are

Is Tort law effective? (Critics: NO!!!)

• NOT adequate mechanism of compensation because:

1. Tort provides comp. to a very small number of victims

2. Victims must make substantial investment to initiate process (this is less so today… “contingency”)

3. The victim must show fault (rather than need) and can only recover damages if fortunate enough to be wronged by someone with assets! (tort not really for everyone?)

4. It is generally accepted that the mechanism is an “extremely inefficient” mechanism to provide compensation (cost and time)

Remember FRANK (AND questions of ACCESS)!

• Are we “Selling Justice?

Tort and Ideology (Abel)

• The tort system relies (and fosters) the idea that individuals are equally capable of seeking (private) remedies for injuries they suffer (equality).

• Moreover: assumes should be the individual’s responsibility alone to protect → injury to self (not the state?) (Liberalism)

• This preserves the fiction of formal equality because it does not consider the differences in resources/capacity and promotes the idea of an individual “consumer” of legal remedies.

• Risks are never everly distributed, the poor often expose themselves to higher risks, which would disproportionately cause them to suffer greater without the means to seek adequate remedies, further entrenching systemic inequalities within the legal framework.

• This causes a fiction of “formal equality” then when risk is exposed we can just use tort.

Marriage Court

Should law be involved with the marriage business?

Defining is POWER (when Law SPEAKS)

• federal manages marriage, while provincial governments oversee the implementation of marriage laws, ensuring that both levels of authority work together to address issues related to marriage, such as licensing, divorce, and property rights.

• The law has always had a hand in defining (legitimizing) marriage (and some intimate relationships)

• In Canada power to legislate the definition of marriage (and divorce) is under s. 91 of Constitution Act 1867 • The power to “solemnize” (admin) marriage however is given to the provinces under s. 92(12) Constitution Act 1867

• The most CRUCIAL Powers re: family law is the PROVINCIAL power over “property and civil rights”

• Provs essentially the ones with jurisdiction to deal with matrimonial property, spousal and child support, custody and issues of guardianship • Canada has a divided jurisdiction in Family law

• Pre 1968 it was difficult to get divorced

• There had to be “fault”

• This then changed that there had to be no fault, and just left to choisefor couples to decide on divorce without needing to prove wrongdoing, simplifying the process significantly.

**Mnookin: 4 Reasons Court Involvement

(Note link to debates on ADR)

1. Ceremonial Function (provide closure)

• this is a manner which we can separate the marriage clearly

2. Review ensures “fair outcomes”: Fairness between parties (e.g. Miglin case)

• Provides pressre to ensure that the agreement is upheld and respected by both parties, reinforcing the importance of legal obligations in marriage. and to manage it on you own

3. May affect out-of-court settlements (pressure on parties to solve disputes)

4.Child Protection (very important!!!) • “Best Interest of the Child” – Court’s special relationship

• The role of the court that in these dissolve of family’s that the intrest of the children are in best interest

“3 Parents Case” (ON) (Nature of relationships, and children)

• A.A. v. B.B (and C.C.), 2007 ONCA 2

• At issue was whether the Court could legally recognize more than 2 parents (3 in this case) •

• Children’s Law Reform Act

• the Court’s inherent Parens Patriae jurisdiction***

At trial the judge ruled he would have extended parentage but said he did not have the authority under:

• Said the decision should be deferred to Parliament but said there was a pressing need to address new realities (reproductive technologies)

On Appeal…

• The applicants added a “Charter challenge” under s. 7 and 15 of the Charter (this was ignored)

• 1. “rescue a child from danger”

2. “to fill in legislative gaps” (voila - the link!) Ultimately Appeal Court said the decision could be made under the Court’s “parens patriae” jurisdiction

• The Ontario Appeal Court said that gaps have been created by major changes in both reproductive technologies as well as changes in social attitudes

• Governments need to update legislation to meet changes – yet they have not (why?)

• Ultimately the Appeal Court ruled that: “it was in the best interests of the child” not to deny the applicant status as a legal parent

“It is contrary to DD’s best interests that he is deprived of the legal recognition of the parentage of one of his mothers … [but] as indicated, AA and C.C. cannot apply for an adoption order without depriving DD of the parentage of B.B., which would not be in DD’s best interests…. Accordingly, I would allow the appeal and issue a declaration that A.A. is a mother of D.D.”

PDF Summary

Family: Historical Context

• The word "family" originated in Ancient Rome and carried a very different meaning than it does today.

• In Roman times, "famulus" referred to a domestic slave, while "familia" denoted the total number of slaves owned by a man.

• The patriarch of the household ruled over the wife, children, and slaves, marking the family as an economic unit where full private property coincided with monogamy.

• The sentimental notion of love within families emerged later, reinforcing established orders.

Private Law II: Legalized Relations in Family Law

• The course covers various aspects of family law, including:

  • Regulation of intimate relationships

  • Historical changes in family law and its impacts on women

  • The role of the state in child care

  • Noteworthy cases like the "3 Parents Case" and children opting out of medical care

  • Ethical implications around polygamy and polyamory.

Neighbour Principle (Legal Duty of Care)

• The Neighbour Principle establishes the idea that

  • Laws are created to limit the scope of complainants and remedies.

  • "You must love your neighbour" translates legally to not causing injury.

• Key cases:

  • Donoghue v. Stevenson (1932): This landmark case introduced the concept of duty of care to neighbors, extending liability to manufacturers for consumer safety.

  • Childs v. Desormeaux (2006): Addressed responsibilities of social hosts regarding the actions of their intoxicated guests.

  • Mustapha v. Culligan of Canada Ltd. (2008): Examined the distinction between subjective and objective tests in establishing reasonable foreseeability in negligence.

Manufacturers' Negligence

• Concepts of duty of care and due diligence determine responsibility towards consumers.

• Legal obligations include:

  • Providing sufficient information and warnings to consumers (e.g., "Caution: Hot Coffee").

• Defenses against negligence claims:

  • Contributory negligence: Claims of shared fault.

  • Accident: Events classified as Acts of God.

  • Voluntary assumption of risk: Acknowledgment of risks in activities like sports.

• Remedies available include compensation, direct and vicarious liability, and injunctions.

Big Issues in Tort Law

• Key issues include:

  1. Efficiency of the tort system in meeting compensation goals.

  2. Inequality arising from the tort system benefits.

  3. Consideration of denouncing or punishing conduct through tort law.

  4. The call to eliminate tort law in addressing private wrongs.

• Critiques of the tort system:

  • Provides inadequate compensation to a limited number of victims.

  • Requires victims to invest heavily in legal processes.

  • Decision-making based on fault rather than need.

  • Recognition that tort law perpetuates systemic inequalities.

Tort and Ideology

• The tort system promotes the ideology of individualism where each person is responsible for seeking remedies.

• It upholds the notion of formal equality, ignoring resource disparities.

• Questions arise about the future of tort law and alternative insurance schemes (e.g., workers’ compensation, no-fault insurance).

Changes in Family Law over Time

• Shifts from nuclear families in the 1960s to diverse family structures today, including single-parent and blended families.

• Legal recognition of:

  • Increased divorce rates.

  • Same-sex marriage (2005).

  • Multi-parent arrangements (2007).

• The evolving role of law in defining marriage, divorce, property, and parental rights through constitutional powers.

State Role and Marriage

• The state oversees marriage formation and dissolution, facilitating divorce over time.

• The Divorce Act pre-1968 reflected adversarial conditions, lacking no-fault divorce provisions, which were later integrated.

• Modern considerations of the court's role question necessity in all divorce cases, particularly mutual agreements.

Same-sex Marriage Legislation

• The Civil Marriage Act (2005) established marriage equality for all couples, reinforcing the push for non-discrimination based on sexual orientation.

• Critical questions remain regarding whether this was a true end to discrimination or merely a new structure of inclusion for traditional relationships.

The "3 Parents Case" and Next Steps

• The case highlighted the legal recognition of more than two parents, emphasizing new social realities from reproductive technologies.

• The court’s decision reflected the need for legislative updates to accommodate modern family dynamics.

• Issues in recognizing parentage include stable family environments and the best interests of the child.

Recent Developments in Polyamory and Polygamy

• Legal context involves various forms of polygamous relationships—bigamy, polyandry, polygyny.

• The historical tension between personal freedoms, consent, and allegations of exploitation.

• Recent cases question the nature of harm in polygamy and call for a nuanced understanding of non-monogamous families, pushing for greater recognition and rights.

Conclusion

• The law significantly shapes social and intimate relationships but should not solely dictate societal norms.

• Ongoing discussions pose vital questions about the state's role in marriage and the challenge of recognizing diverse family forms in an evolving legal landscape.

KAi

Overview of Family Law and Legal Principles

In exploring the concept of family law, we delve into the underlying structures that govern family relationships, marriage, and parenthood. This segment is divided into key areas: the neighbor principle, duties in relationships, evolving definitions of marriage, and recent changes in law affecting family dynamics.

Neighbor Principle in Law

• Definition: The neighbor principle, derived from case law, suggests that individuals owe duties not only to those closely related, but also to strangers if their actions could foreseeably cause harm.

• Key Case Example: The Donkey case illustrates this concept, where the court reaffirmed that individuals are responsible for foreseeable consequences of their actions, even to third parties.

• Connection: The court established criteria for determining one’s ‘neighbor’ as someone whose well-being could be impacted by one’s actions, emphasizing the need for reasonable foresight in establishing duty of care.

• Implications: This principle raises vital inquiries in legal contexts, particularly in sports and social gatherings where the duty to prevent harm may apply differently depending on the context (e.g., social hosts vs. commercial alcohol servers).

Duty of Care and Foreseeability

• Duties in Social Contexts: The law establishes that social hosts, unlike commercial enterprises, may not have the same legal obligations concerning guests' safety. This differentiation stems from the proximity and foreseeability of harm.

• Child P. Desmaros Case: A key case illustrated that social hosts might not be liable for injuries to third parties (e.g., drivers outside their home), highlighting a gap in responsibility that could influence future cases.

Evolving Nature of Marriage and Family

• Historical Context: Marriage has transitioned from a traditional institution centered on a nuclear family model to an arrangement reflecting diverse contemporary relationships, including common-law partnerships.

• Trends in Marriage: Data show decreasing marriage rates paired with increasing acceptance of alternative family structures, prompting legal discussions around the role of marriage in society today.

• Changes in Divorce Law: The introduction of no-fault divorce in 1968 transformed the process, allowing couples to dissolve their marriages without proving wrongdoing, thus reducing barriers to separation.

Legal Recognition of Family Structures

• Same-Sex Marriage: The legalization of same-sex marriage in Canada in 2005 illustrates societal shifts and legal recognition of diverse unions, prompting discussions about traditional versus evolving conceptions of marriage.

• Critiques of Marriage Equality: Scholars like Vijay Ray have critiqued this shift, arguing that it preserved the institution itself rather than transforming its constructs, suggesting a need for more substantive changes in societal views on marriage.

Case Study: Parental Rights in Same-Sex Families

• DB Case: A landmark case involving a same-sex couple and their donor highlighted legal barriers faced by non-biological parents in securing parental rights. The courts initially limited parental recognition to two legal parents based on traditional definitions.

• Court’s Inherent Jurisdiction: On appeal, the ruling emphasized that courts have an inherent parental jurisdiction, allowing them to protect children’s best interests even amid legislative gaps in family law.

• Broader Implications: This ruling highlights the need for legal systems to adapt to rapidly evolving family dynamics and reproductive technologies, ensuring that all parental relationships are recognized and protected by law.

Conclusion

The evolving landscape of family law reflects broader societal changes regarding marital relationships, parenthood, and individual rights. Understanding these shifts helps to grapple with contemporary issues such as duty of care, the role of the state in family matters, and the recognition of diverse family structures.