Understanding The Duty Of Care In Ontario

Before a court will hold anyone liable in negligence, one threshold question must be answered: did the defendant owe the plaintiff a duty of care?

In Ontario, and across Canada, duty of care is the legal relationship that makes a defendant responsible for the plaintiff’s damages in the first place. Without it, even serious harm caused by careless conduct gives rise to no legal claim.

A duty of care is a legal obligation to take reasonable steps to avoid causing foreseeable harm to others. It is a specific legal relationship recognized by law between a defendant and a plaintiff.

Where the relationship between the parties falls within a category previously recognized by Canadian courts, a duty of care is established without further analysis. Courts have long recognized duties in familiar relationships, including:

– Driver to other road users;

– Occupier to visitors on their property;

– Manufacturer to the end consumer;

– Physician to patient;

– Employer to employee;

– Lawyer or accountant to client.

If the parties stand in an established relationship, the court proceeds directly to the next question in the negligence analysis: whether the standard of care was breached.

Where the relationship does not fit an established category, courts must determine whether a duty should be recognized for the first time. That analysis proceeds under the Anns/Cooper framework, derived from Cooper v. Hobart, 2001 SCC 79. The test has two stages.

1 – Reasonable foreseeability of harm

Was it reasonably foreseeable that the defendant’s conduct could cause harm to the plaintiff, or to a class of persons of which the plaintiff is a member? This is an objective standard, assessed at the time of the defendant’s act or omission.

2 – Proximity

Is the relationship between the parties sufficiently close and direct that it is just and fair to impose a legal duty? Foreseeability alone is not enough. Courts look at the nature of the relationship, whether the defendant undertook any responsibility toward the plaintiff, whether the plaintiff relied on the defendant, and whether that reliance was reasonable.

If both elements are established, a prima facie duty of care arises and the burden shifts to the defendant at Stage Two.

Even where proximity and foreseeability are made out, a defendant may argue that broader policy reasons should negate the duty. These concerns are not about the relationship between the parties but about the potential effect of recognizing the duty on the legal system and society more generally. For example, where recognition would expose defendants to indeterminate liability, or would conflict with other legal obligations, policy reasons may result in the court refusing to recognize such a duty.

In practice, Stage Two rarely defeats a prima facie duty. The Supreme Court of Canada has confirmed that the first stage does most of the analytical work, and only in exceptional cases will residual policy considerations carry the day.

Duty of care and standard of care are distinct legal concepts that are often conflated.

The duty of care asks whether the defendant owed any legal obligation to the plaintiff at all. It is a threshold question about the existence of the legal relationship.

The standard of care asks how the defendant was required to act once that duty is established. It defines the level of conduct required; generally, that of a reasonable person in the circumstances.

A defendant may concede duty but argue breach of the standard never occurred. Or a defendant may dispute that any duty existed. These are different defenses requiring different analysis.

Duty of care is the gateway to every negligence claim. It must be established before the court considers any of the other elements: breach, causation, or damages. If duty fails, the claim ends there.

Whether you are advancing a claim or defending one, understanding how courts assess duty of care is essential to evaluating your position.

Have questions about a negligence or duty of care claim? Our civil litigation team can assess your situation. Contact us at 416.901.9984 or info@pintoshekib.ca for a confidential consultation.