Negligence (General)

Soulos v. Korkontzilas, 1997 CanLII 346 (SCC), (1997) 2 SCR 217

63 Even aside from the case law, in my view, the unavailability of a constructive trust in the absence of unjust enrichment is consistent with the constructive trust’s remedial role. The respondent submitted that if no remedy is available in the present case, there would inappropriately be a right without a remedy. I disagree. Clearly, the beneficiary has a right to have the fiduciary adhere to its duty, and if damages are suffered, the beneficiary has a right to a remedy. In my view, this is analogous to remedial principles found elsewhere in the private law. Even if a duty is owed and breached in other legal contexts, there is no remedy unless a loss has been suffered. I may owe a duty to my neighbour to shovel snow off my walk, and I may breach that duty, but if my neighbour does not suffer any loss because of the breached duty, there is no tort and no remedy. Similarly, I may have a contractual duty to supply goods at a specific date for a specific price, but if I do not and the other party is able to purchase the same goods at the contract price at the same time and place, the party has not suffered damage and no remedy is available. It is entirely consistent with these rules to state that even if a fiduciary breaches a duty, if the fiduciary is not unjustly enriched by the breach, there is no remedy.

Richard v. 2464597 Ontario Inc., 2019 ONSC 2104 (CanLII)

[30] The standard of care in negligence cases is that of a prudent and reasonable person in the circumstances. As stated in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), (1999) 1 S.C.R. 201, at para. 28:

"Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. [Emphasis added]"

[36] It is not disputed that in cases alleging professional negligence, expert testimony is generally required. There are two exceptions to this general rule. The first is where the court is faced with non-technical matters or those of which an ordinary person may be expected to have knowledge. The second is where the actions are so egregious that it is obvious that the conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard: see 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656 (CanLII), at paras. 53-57.