I think there are two different problems involving breach of statute and tort .

The first and most straightforward case is where the defendant breaches a statutory duty. In Canada, there is no nominate tort of breach of statutory duty. Thus, unless the statute expressly creates civil liability for a breach of a statutory duty, the courts are not to attempt to interpret the statute to find an implied private law remedy. If there is a common law duty of care, the court can use the statutory breach as useful evidence that the defendant had been negligent in failing to live up to its common law duty. It is up to the trier of fact to determine the relevance of the statutory breach in making out the plaintiff's claim for its action in negligence. There is no necessary inference or presumption of fault.

The more difficult case which raises a different issue is the ability of a plaintiff to sue a statutory authority for its negligent failure to perform its statutory responsibilities or exercise its regulatory powers which allegedly led to the plaintiff suffering a loss. The issue here is whether the courts can use the statutory responsibilities or powers as the source of a proximate relationship between the authority and the plaintiff to establish a common law duty of care. My view has been that although Canadian courts have attempted to find proximity within the terms of statutory provisions that this is incorrect and fruitless. Proximity comes from relationships; statutes can serve as the catalyst for relationships, but whether these relationships create proximity is not dependent upon implied legislative intention but on common law principles. I think Canadian courts reluctantly have been moving to my position, but have not abandoned their insistence that statutes can create proximity, and this depends upon legislative intention.

Lewis

On Wed, Oct 3, 2012 at 12:08 PM, Richard Wright <rwright@kentlaw.iit.edu> wrote:

A recent post on the USA tortprof list, tortprof@chicagokent.kentlaw.edu,
posed a question about tort liability for breach of a criminal statute. The post asked, in relation to a student question in class, how tort liability based on such a breach was possible prior to a criminal court's determination of breach of the criminal statute. I posted the following response (which is meant to apply to breach of any governmental statute, ordinance, or regulation). Is my characterization of the English-Canadian approaches accurate? What about approaches elsewhere?

---------- Forwarded message ----------
From: Wright, Richard <rwright@kentlaw.iit.edu>
Date: Wed, Oct 3, 2012 at 8:42 AM
Subject: Re: Question on negligence per se from a student
I believe the answer is that negligence per se does not actually involve application of the criminal statute. Instead, the common law takes into account the legislative judgment about duty and reasonable care in the particular circumstances and employs that judgment in the tort action. Indeed, courts have held that the legislative judgment can still be employed even if the criminal statute was not actually enacted due to some missing formality. The theory, it seems, is that the best evidence of community standards of reasonable care in particular situations is the legislature's judgment, which represents the community as a whole, rather than a single judge or jury. This theory also leads to the conclusion that the breach of the statute/regulation should be conclusive, non-rebuttable evidence of negligence. But the standard of persuasion on breach of the standard of reasonable care (borrowed from the criminal statute) is the usual civil one: preponderance of the evidence.

The contrary thesis, strongly held in England and Canada, at least, is that breach of the criminal statute should not be conclusive evidence of negligence, or perhaps any evidence: that, if the legislature had desired that result, it could/would/should have said so, and thus that the civil law's using breach of the statute as evidence of negligence is actually contrary to the legislature's intent, or at least relying on speculative legislative intent.

Many courts in the USA, and a growing number, seem to take the middle ground: breach of the statute is some evidence of negligence or perhaps even creates a rebuttable presumption of negligence, but it is not conclusive evidence of negligence.

--
Lewis N. Klar, Q.C.,
Professor of Law,
University of Alberta.
(780) 492-7408

From:	Lewis N Klar <lklar@ualberta.ca>
To:	obligations@uwo.ca
Date:	03/10/2012 20:45:11 UTC
Subject:	Fwd: breach of (criminal) statute