D. Reform and modernization

In the latter part of the twentieth century, the Supreme Court paid a lot of attention to the reform and modernization of tort law. This was long overdue. Tort law carried a great deal of historical baggage into the twentieth century and much has been done, in an incremental way, to adjust tort law to modern Canadian realities.

Not surprisingly, much of the change has taken place in the tort of negligence. The Supreme Court has developed a clear framework under the Anns principle for the determination of a duty of care. It has also provided guidance on other foundational elements of the tort of negligence, such as causation, proof of fault, and remoteness of damage. The Court has also reworked the defences to negligence liability to promote the compensatory policies of modern tort law. The defence of voluntary assumption of risk has been narrowed and, for all practical purposes, the defence of illegality has been eclipsed. The Court has also played a strong role in reforming the assessment of damages rules in personal injury and fatality litigation. A number of more specific issues have also been addressed, such as product warnings, product quality, breach of statutory duty, informed consent to medical treatment, governmental liability, and liability for economic loss.

There is, however, a great deal of work left to be done in the twenty-first century. The rules relating to the negligent infliction of nervous shock are unsatisfactory. The law relating to the intentional interference with chattels is unduly complex. The torts of intentional interference with the person are replete with oddities and anachronisms ranging from concepts such as directness and the reverse onus of proof of wrongdoing to the failure to provide sufficient protection of dignitary interests such as equality and freedom from both harassment and mental distress. The rule in Rylands v. Fletcher should either be generalized to all ultra-hazardous activities or abolished. The rules relating to the strict liability for damage caused by animals should be rationalized and integrated around some general principle of strict liability or fault. Defamation is in need of some reorientation to provide greater protection of freedom of speech.

Most of the responsibility for the future shape of tort law rests with the Supreme Court. The provincial legislatures may make some contribution, as they have in the past, most notably in the fields of occupiers' liability and privacy. The pace of judicial reform depends, to a large extent, on the kinds of cases that are appealed to the Supreme Court and upon the Court's declared policy to reform the common law in an incremental manner, leaving fundamental reform to the legislatures. Nevertheless, the Supreme Court has embarked on the task of developing a modern Canadian law of torts that is largely independent of other common law jurisdictions and this work will continue in the twenty-first century.

CHAPTER 9, CONCLUSION: THE CANADIAN LAW OF TORTS IN THE TWENTY-FIRST CENTURY