F. Breach of statutory duty

One unfortunate consequence of the technological and social progress that Canada enjoyed throughout the twentieth century was a rising tide of personal accident losses. This increase in accident rates led to a much greater emphasis on personal safety and the need for effective accident prevention mechanisms. Both negligence law and statutory regulatory schemes play complementary roles in this important task.

Accident prevention is a legitimate and important aspiration of negligence law. The deterrent power of negligence law, however, probably diminished throughout the course of the twentieth century. The widespread use of liability insurance, the vicarious liability of employers for the wrongdoing of employees, the haphazard application of the tort system to dangerous conduct, and the failure to promote the deterrent power of negligence law by tying damages to the degree of fault or broadening the use of punitive damages, all had an adverse impact on the power of tort law to prevent accidents. Nevertheless, negligence law probably has some residual power to affect the behaviour of certain classes of defendants such as the manufacturers of products who make planned cost-benefit decisions, professionals who may suffer adverse consequences from publicity surrounding successful litigation, uninsured defendants, and defendants whose legal liability may affect the continuation or price of liability insurance coverage.

The erratic and indirect deterrent influence of negligence liability has, however, been supplemented and strengthened by a massive increase in legislative safety regulation and controls. These direct legislative controls promote the safety of citizens in respect to the manufacture and distribution of products and services, the workplace, the environment, transportation, health care, public buildings, public health, and virtually every other societal activity that carries a significant risk of damage to person or property. This legislation is largely independent of the tort system. It normally provides for the adoption of specific safety measures and describes a range of penalties for the failure to comply with them. These legislative instruments are administered by governmental officials, and a scheme of inspection, informal and formal enforcement procedures, and sanctions is normally established. These regulatory schemes have further diminished the importance of negligence as a deterrent device and have led to a heavy reliance on governmental controls to protect the health and safety of citizens. Although the tort of negligence and statutory regulatory schemes are discrete legal phenomena, there are situations where they intersect. Of particular importance are those situations where a person has been injured by a breach of a statutory duty arising from conduct that may or may not be a breach of the common law standard of reasonable care. There has been much debate about the relationship between statutory duties and the tort of negligence in these situations.

There are good reasons to integrate the statutory breach into negligence law in some way. It allows courts to support and reinforce the accident prevention initiatives of government, it offers to courts concrete standards of conduct which have often been set with the assistance of expert advice, policy debate, and the input of those involved in the relevant activities, and it permits courts to add the deterrent clout of tort law to enhance the effectiveness of the legislation.

Most of the debate has focused on the legal analysis best suited to accommodate breach of statute within negligence law. Two situations must be kept separate. There are a few statutes that directly address the issue of civil liability for loss caused by their breach. The statute may, for example, expressly state that a breach does not, under any circumstances, give rise to an action in damages. This will be a defence to any tort action. Conversely, the statute may, expressly, provide that a person damaged by a breach of statute has an action for damages for loss caused by the breach. This creates a discrete statutory cause of action independent of the negligence action. The plaintiff's claim depends solely on proof of the breach of the statute, causation, and damage. Statutes containing an express declaration of legislative intent are, however, the exception.

Most regulatory legislation is silent on the subject of civil liability for loss caused by statutory breach. Its language is directed solely to the duty to be obeyed and the penal consequences of delinquency. The manner in which evidence of statutory breach is to be handled in a negligence action is left to the courts. There are a number of competing views about how to accommodate breach of statute and negligence law where the statute is silent as to its relationship to civil liability. The English theory is based on the fact that some legislation contains an express statutory cause of action. It is reasoned from that premise that the legislature may impliedly intend a cause of action in favour of those injured by a breach of a statute. The controlling concept, therefore, is the intention of the legislature as divined from the statutory language and legislative policy. This pursuit of an elusive, and often non-existent, intent of the legislature has been criticized as promoting a great deal of arbitrary decision making and producing considerable uncertainty. If the requisite intent to provide a civil action is discovered, an independent statutory cause of action arises and liability is determined in the same way as an express statutory cause of action.

The American courts have chosen to accommodate the breach of statute within the tort of negligence. The statutory standard is adopted as the standard of care in the negligence action. There has, however, been a disagreement among American courts in respect of the procedural effect of adopting a statutory standard of care. The majority view is that a breach of the standard is negligence per se. The setting of the standard of care is taken away from the judge and jury and is set conclusively by the legislation. The minority view is that proof of a breach of a statutory standard is merely another relevant factor in determining if the defendant has met the common law standard of reasonable care.

Canadian courts had shown no fidelity to any one of these theories until the Supreme Court addressed the issue in Saskatchewan Wheat Pool v. Canada. [Note 58: [1983] 1 S.C.R. 205 [Wheat Pool].] In that case, the defendant Wheat Pool delivered infested grain to the plaintiff Wheat Board in breach of section 86(c) of the Canada Grain Act. [Note 59: 1 S.C. 1970-71-72, c. 7.] The plaintiff sought to recover the cost of fumigating the grain to make it fit for export. The defendant had not been negligent. Consequently, the plaintiff relied on the English statutory tort theory and the majority American theory of negligence per se, neither of which required the proof of negligence in the conventional common law sense. A unanimous Court rejected the plaintiff's contentions and adopted the minority American position. The Court held that the statute may afford a specific and useful standard of conduct, and the breach of it may provide evidence of negligence. The ultimate issue, however, is whether or not the defendant failed to act with reasonable care, something that the plaintiff had not even attempted to prove. The Court rejected the competing views because of their potential to lead to the imposition of strict liability. That potential was well illustrated by the Wheat Pool case itself. The Court reasoned that the imposition of a strict civil liability for a minor breach of statute, the remedy for which would normally be a small fine, would be unduly burdensome to the defendant and productive of unfairness.

There is no doubt that the Wheat Pool case has settled the Canadian debate about the place of breach of statutory duty in tort law. Ultimately, liability depends on fault and the application of negligence principles. The choice of negligence as the controlling basis of liability may have been influenced by the unusual facts of the Wheat Pool case. First, the issue of statutory breach most commonly arises in respect of safety statutes and personal injury litigation. The statutory provision under consideration in the Wheat Pool case dealt with the quality of a commercial commodity. It did not raise the issues of deterrence and compensation of personal accident losses, which may have led to a greater sympathy for the English or majority American theories. Second, the loss was essentially economic and the courts are notoriously reluctant to allow recovery of economic loss in negligence. Any theory that might lead to the imposition of a strict liability for economic loss was not likely to succeed. Third, on the facts of the case and in the absence of negligence, there does not appear to be any compelling reason to shift the loss from the shoulders of one excellent loss distributor to those of another. These factors clearly support the choice of fault rather than the statutory breach as the touchstone of civil liability in the Wheat Pool case. Nevertheless, they also indicate that the case was atypical and that the Court might have found the majority American theory more attractive if the case had been one of statutory breach causing personal injuries.

The later Supreme Court decision in Galaske v. O'Donnell [Note 60: [1994] 1 S.C.R. 670.] provides a useful perspective. In that case, the defendant driver failed to ensure that an eight-year-old passenger was securely fastened in an available seat belt in direct contravention of section 217(6) of the British Columbia Motor Vehicle Act, [Note 61: 1 R.S.B.C. 1979, c. 288.] which prohibits the driving of an automobile unless children between the ages of six and sixteen are wearing a seat belt. The Court held that the defendant owed the plaintiff a duty of care and then applied its decision in Wheat Pool to the standard of care issue. The breach of the statute was not conclusive of the issue of due care. It could be taken as an indication that the defendant's conduct was unreasonable but it was necessary to consider all the relevant factors to determine if, in the circumstances of the individual case, the defendant had failed to take due care. Since the defendant had clearly taken no steps to ensure that the seat belt was fastened, negligence was readily found. It was recognized that, in other cases, it might be more difficult to determine the issue of reasonable care and that it might depend upon the age of the driver, the relationship among the passengers, and other relevant circumstances.

It is in this kind of case that the American negligence per se theory is most attractive. The result in Galaske would be the same, but the adoption of the statutory standard as the controlling standard of care leads to much greater certainty and predictability. It shows a strong commitment to the safety initiatives of government. It promotes the deterrent and compensatory functions of tort law. Moreover, there is, arguably, no great injustice in imposing strict liability where personal injury arises from dangerous activities that are conducted in violation of statutory regulations.

It was open to the Supreme Court to distinguish Galaske from the Wheat Pool case on the ground that Wheat Pool dealt with the quality of a commercial product, not the safety of children on the highway. This would have allowed the Court to impose a more stringent liability in respect of dangerous activities such as the operation of motor vehicles. A stricter liability would also have been consistent with the conventional treatment of industrial safety statutes, which the Court isolated for special mention in Wheat Pool. The Court did not disapprove of the strict liability that historically has been imposed for a breach of those statutes. [Note 62: There is, however, little scope in Canada for a tort action based on the breach of an industrial safety statute because of the Workers'Compensation schemes. The Court appears to have been referring to the English experience.] Yet it declined to make these distinctions and it now seems fully committed to a global approach to breach of statutory duty on the basis of the tort of negligence. There is, however, room in this approach to take into account the nature of the statute and the interest it is designed to protect, and to give special emphasis to the evidence of breach of the statute. In appropriate cases, courts are not uncomfortable with a covert strict liability under the cover of negligence law.

The approach taken by the Supreme Court in respect of the breach of statutory obligations is mirrored in its approach to evidence that the defendant was in compliance with statutory duties. The issue arose in Ryan v. Victoria (City of). [Note 63: [1999], 1 S.C.R. 201. ] In that case, the plaintiff motorcyclist attempted to cross the defendant's railway track, which ran down the centre of a street. The front wheel of the motorcycle wedged into the flangeway gap running along the inside edge of the tracks. He was thrown off his motorcycle and injured. The defendant argued that it was not negligent because it was in compliance with all statutory rules and regulations in respect of its track. The Supreme Court held that compliance with statutory obligations was not a complete defence to an action in negligence. It provides evidence of reasonable conduct but the controlling standard is the common law standard of reasonable care. The weight to be given to statutory compliance depends upon the kind of case before the court. More weight is given to it where the legislation prescribes specific statutory standards of conduct and the case falls comfortably within the scope of the legislation. Less weight will be ascribed to it where the legislation prescribes general and discretionary standards of conduct and the case does not fall comfortably within the scope of the legislation. In Ryan the legislation gave significant discretion as to the width of the flangeway gap and the case did not fall comfortably within its scope because the regulations were designed primarily to deal with railway crossings. The Court held that the standard of reasonable care dictated a narrower flangeway gap, which, on the facts, would have prevented the accident.

. CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE