Exploring Power Purchase Agreents the Basics Part 1 Transcript

By Herbert Fisher,2014-11-12 08:17
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Exploring Power Purchase Agreents the Basics Part 1 Transcript




     duty of care

     standard of care and its breach





Burden of Proof (who has to prove what?)

     in a civil lawsuit, the burden is on the person who is alleging tort

     proof is on a balance of probabilities (has the plaintiff established it is more probable

    than not that, not the same as proof beyond a reasonable doubt)

     the defendant has the burden of proving defences

Duty of care

     Legal duty to exercise care owed to persons who fall within the ambit of foreseeable risk created by the defendant‘s actions (a question of law)

Breach of the standard of care

     Did the defendant do what a reasonable person would have done in the circumstances (objective test) a question of fact (need to look at the surrounding circumstances etc)


     the breach of the standard of care must have caused actual injury or loss to the plaintiff there must be actual injury/loss (tangible) suffered from the breach

Remoteness of Damages

     whether or not there is a reasonably proximate causal link btw the breach of duty and the harm (liability is generally limited to those losses that were reasonably foreseeable to result)


     damages may also be reduced or eliminated if plaintiff was contibutorily negligent, if there was voluntary assumption of the risk, if there was illegality, or other considerations (e.g. inevitable accident on defendant‘s part)


The Burden of Proof in a Negligence Action

     legal burden: burden of proving an issue on the balance of probabilities



     evidentiary burden: burden of adducing evidence that, if believed, is capable of meeting the legal burden

     tactical burden: strategic need to adduce evidence


     plaintiff‘s husband found to be run over by train

     in original trial, jury found that D was negligent

    - Brett M.R. (Court of Appeal) P bound to give evidence of negligence on part

    of defendant AND to give prima facie evidence that the deceased was not guilty

    of negligence contributing to the accident

    - Believed P did not show prima facie case did not demonstrate that husband

    wasn‘t contributorily negligent (at that time, if found cont. neg. then would get no

    recovery at all)

    - Lord Watson (majority) if P is able to show that negligence of defendants

    materially contributed to injury, in the absence of any counter-evidence from

    defendant, ought to be presumed that there was no contributory negligence

    ; burden of proving CN is on defendant

     claim failed, b/c P did not show prima facie case of causation against D P‘s evidence showed that railway‘s negligence was a POSSIBLE cause, but that not enough to satisfy burden of proof has to be a PROBABLE cause

    Exceptions to the General Principles Governing the Burden of Proof

    a) statutes can alter common law rules

    b) directly caused injury

    c) multiple negligent defendants

Statutes and Shifting Burdens of Proof


     plaintiff, service station provider stood in front of D‘s car after boosting battery, struck by D‘s car

    - res ipsa loquitur doctrine used in s.193(1) of HTA owner or driver is prima

    facie liable for damage caused by his motor vehicle unless he satisfied the Court

    on a preponderance of evidence that he was not in fact negligent

    - P need only show that the collision, and not the conduct of the driver, was the

    cause of the damage

    -s.193(1) shifts BOP onto defendant - P has to show that damage occurred by

    motor vehicle, then the onus shifts onto def to disprove negligence (i.e. that his

    conduct did not negligently cause the damage)

    -if D cannot disprove, then found negligent in this case, Woodward could not

    satisfy the onus s. 193(1) shifted on him



    HIGHWAY TRAFFIC ACT, R.S.O. 1990, c. H-8, s. 193 (page S37)

Onus of Disproving Negligence

193(1) When loss or damage is sustained by any person by reason of a motor vehicle

    on a highway, the onus of proof that the loss or damage did not arise through the negligence of the driver or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver.

    (2) This section does not apply in cases of a collision btw motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.

―highway‖ includes public highway, street, driveway, bridge…

    ―motor vehicle‖ includes automobile, motorcycle…farm-tractor…

PARENTAL RESPONSIBILITY ACT 2000, S.O. 2000, c. 4 (page S37)

An Act to make parents responsible for wrongful acts intentionally committed by

    their children

     Reverses the burden of proof for the standard of care onus is on the defendant

    parents to prove, in cases where a child takes, damages, or destroys property, (Small Claims Court), as well as for personal injury or death caused by the fault of child, that the parent exercised reasonable supervision and control over the child at the time the child engaged in the activity, and made reasonable efforts to prevent or discourage child from engaging in the kind of activity that resulted in the loss or damage. Also has to prove that the activity that caused the loss or damage was not intentional. Various factors ct considers include: age of child, prior conduct, potential danger of activity etc.

     Where more than one parent is liable in an action brought under this Act for a child‘s activity, their liability is joint and several.

SHANNON v. T.W. (2002) (ON Small Claims Ct)

     boys stole jewellery and other items from P‘s home during summer holidays when parents were away at work

     action commenced under Parental Responsibility Act

     P relied on s. 2 saying parents had failed to properly monitor and exercise supervision over kids, should not have left them alone

     judge held that it was reasonable to leave 10 yr old one under charge of 16 yr old one the standard imposed by the Act is one of reasonableness, not perfection parents are not required to establish that they arranged for children to have the best type of supervision available

     only need to establish that child was provided with reasonable supervision



Directly Caused Injury: Unintended Trespass


     D fired at deer, missed deer but hit P working on his farm

    - P sues under 2 causes of action: negligence and trespass

    - rule in trespass (intentional tort) is that when plain has shown trespass, it is up to

    defendant to prove the absence of intention and absence of negligence

    - -in this case, D failed to meet that onus


     several bus drivers were alleged to have sexually assaulted P

     claim of trespass to the person (battery a type of trespass to person)

    Battery Casesin battery cases, the plaintiff has to prove the direct application of force resulting in offensive contact with their body; the defendant then has the burden of proving that the offensive contact was neither intentional nor negligent; the defendant also has the burden of proof regarding defences, such as the defence of consent

    Sexual Batterythe plaintiff who alleges sexual battery makes her case by tendering evidence of forced applied directly to her (‗force‘ in the context of an allegation of sexual

    battery, simply refers to physical contact of a sexual nature); if the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented

Multiple Negligent Defendants

COOK V. LEWIS, (1951) (S.C.C.)

     P, Lewis, hit in face by bird-shot, but unable to tell between 2 shooters who shot in same direction which one hit Lewis

     P cannot prove who actually applied the force, so is not aided by shift in BOP

    - Rand, J. a problem of proof -- ―not only violated victim‘s substantive right to

    security, but he has also culpably impaired the latter‘s remedial right of

    establishing liability…onus is then shifted to the wrongdoer to exculpate

    himself.‖ P‘s difficulty to prove arose because of defendants‘ negligence

    - Cartwright, J. each is liable ―to hold otherwise would be to exonerate both

    from liability, although each was negligent, and the injury resulted from such

    negligence.‖ innocent plaintiff should not bear the consequences

     shifts onus of proof on causation issue

     an instance where bop shifted not b/c of statute but court‘s application and development of common law to deal w circumstance where innocent plain injured, can‘t

    prove which of two defs caused it


    1) McGhee v. Nat. Coal Bd. (1972) (HL) Lord Wilberforce stated that burden of

    proving causation should shift from P to D if D‘s negligence materially increased

    the risk of injury and that very injury befell P. Other members did not accept, and



    found that carelessness that materially increases the risk of injury can be taken to

    have caused or materially contributed to the occurrence of injuries, thereby

    discharging the P‘s burden.

    2) Supreme Court of Canada rejected McGhee in Snell v. Farrell, and held that P

    still bears legal burden and held that evidence of conduct that materially increased

    the risk of injury does not per se constitute sufficient proof. They did recognize,

    however, that where the facts are particularly within the knowledge of one party,

    an inference of causation may be drawn on the basis of very little evidence.

Res Ipsa Loquitur

―the thing speaks for itself‖

     was a doctrine of law that was used where there was no positive direct evidence about how an injury was caused

     in some instances, the mere fact that accident occurred would raise inference of negligence on defendant

     circumstantial evidence would be enough for plain to prevail

     maxim said to consist of:

    ; instrumentality of harm must have been under sole mgmt and

    control of D or someone for whom D was responsible

    ; occurrence must have been one that does not, in ordinary course of

    events happen without carelessness

    ; must not have been any direct evidence as to how or why the

    accident occurred


     truck discovered down steep embankment with Loewen‘s body buckled behind steering wheel and P‘s husband, Fontaine, in passenger seat – both dead

     under Family Compensation Act brought action arguing mere occurrence of accident

    sufficiently established that husband‘s death was attributable to Loewen‘s carelessness

    - res ipsa loquitur does not shift the BOP to the D all it means is that

    circumstantial evidence constitutes reasonable evidence of negligence

    - if D provides a reasonable explanation that is as consistent with no neg. as the

    RIL inference is with neg. then they neutralize and P‘s case fails

    - found that only potential evidence of negligence on Loewen‘s part due to bad

    weather etc most explanations offered by D were grounded in the evidence were

    adequate to neutralize whatever inference circumstantial evidence could permit to

    be drawn P fails

     this case effectively does away with res ipsa loquitur as a separate and distinct doctrine of law

     still exists in the sense that circumstantial evidence can be used to support the

    P‘s case (among other evidence) but this is dealt with the trier of fact, who would

    weigh all the evidence

     P still bears the burden of proving on a balance of probabilies that the neg on

    part of D caused the P‘s injuries (can establish negligence with circumstantial




    Novel Approaches to Problems of Proof


     DES drug administered to mother, plaintiff daughter suing for injuries incurred as a result (rare vaginal cancer)

     unable to identify particular manufacturer 5 companies had 90% of the market share,

    195 companies had the other 10%

     defendants negligent in that they marketed drug as safe, when inappropriate measures were taken to assess validity of claim; defendants collaborated in promoting drug

    - P relied on principle that if a party cannot identify which party caused injury,

    burden shifts to D to prove otherwise, but does not apply here cuz absence of

    evidence not due to Ds‘ actions (as in Cook v. Lewis and Summers (case similar to


    - In Summers (and Cook), able to identify all possible tortfeasors, here the trouble

    is that P can‘t

    - Policy reasons step in to benefit P innocent plaintiff and negligent defendants,

    cost of injury can be better absorbed by industry (and ultimately passed on to

    consumer), injustice of shifting burden to Ds is less than to Ps

    - So burden of proof to disprove causation shifted onto the Ds

    - If D can prove they were not negligent, then can escape liability

    - Liability apportioned through market share proportions

    o Richardson, J. (dissenting) majority position guarantees Ps will win b/c

    defendants are no more capable of disproving factual causation; in fact

    imposing a liability exceeding absolute liability (don‘t even have to show

    direct causation)

    o Market share may hold mftrs disproportionately liable

    o No matching of D‘s conduct and P‘s injury, something that is absolutely

    essential in tort law (causation)

    o Circumstantial evidence, such as market share, may be used for causation,

    but majority uses it improperly for liability

    o Using ‗deep pocket‘ theory of liability

BC v. Imperial Tobacco Canada Ltd. [2005] (SCC)

    -co. challenged the constitutionality of the below legislation

     -claimed the prov lacked jurisdiction to legislate rejected

     -argued that legislation was inconsistent w/ judicial independence dismissed

    -argued that allowed prov gov‘t special advantages not permitted under rule of

    law also dismissed

     legislation upheld by the ct



    Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30

applies when plain unable to establish which co caused damages

     legislates away the difficulties of proving causation for tobacco injury caes

     if one or more D‘s causes or contributed to risk of disease by exposure to tobacco, and P is exposed and suffers disease as result of exposure, the ct may find each D liable for a proportion of the damages/cost of health care benefits equal to the

    proportion of its contribution to that risk of disease

     in apportioning liability, laid out in statute (many factors taken into account e.g.

    market share, degree of toxicity, amount spent on advertising, extent to which D conducted tests/studies to determine risk…


General Duty of Care


     P‘s friend bought dark, opaque bottle of ginger-beer

     discovered decomposed snail in bottle sued for shock, and gastroenteritis

     Lord Atkin (majority) extension of neighbour principle take reasonable care

    to avoid acts/omissions you could reasonably foresee would be likely to injure

    your neighbour

    - Your neighbour in law are ―persons who are so closely and directly affected by

    my act that I ought reasonably to have them in contemplation as being so

    affected‖ (relationship of proximity)

    - Lord Buckmaster (dissenting) too wide ranging, had no contract


     established test for determining whether a duty of care existed

     two stages:

     (1) A sufficient relationship of proximity or neighbourhood such that, in the

    reasonable contemplation of the D, carelessness on his part may be likely to cause

    damage to the P

     (2) If (1) answered affirmatively, necessary to consider whether there are any

    considerations which ought to negative, or to reduce or limit the scope of the duty

    or the class of person to whom it is owed or the damages to which a breach of it

    may give rise

     Anns test adopted in Canada in Kamloops v. Nielson (1984) (SCC)

Some Novel Claims Cases (Cooper, Odhavji, Bella)

     COOPER V. HOBART, (2001) (S.C.C.)

     investors lost over $180m due to allegedly fraudulent actions of mortgage brokers claim that had Registrar suspended broker earlier, would have avoided/diminished losses



     Anns test revised first stage: (1) proximity, which is more than just reasonable

    foreseeability of harm, but about relationship (2) policy considerations wrt to the

    specific parties of the case that would limit or negate; Second stage: broader

    policy considerations

     Defining the relationship may involved looking at expectations, representations,

    reliance, and the property or other interests involved factors that allow to

    evaluate the closeness of the reltp btw P and D

     While reasonably foreseeable financial loss might result, insufficient proximity

    b/w investors and Registrar statute does not impose a duty of care on the

    Registrar to individual investors, but rather to the public as a whole Would have been rejected on public policy branch of Anns test anyways


     P fatally shot by police, action brought by his estate, and family members for

    negligent infliction of emotional distress action brought against chief of police,

    police services, special investigations unit (SIU)

     Novel claim, so Anns test applied to determine whether duty of care arises Wrt chief reasonable expectation that members of public would hold that chief

    be mindful of injuries that would flow if he didn‘t comply with statutory

    obligations this expectation consistent with the Police Services Act

    BELLA V. YOUNG (2006) (SCC)

     another novel claim use Anns to find duty of care

     court does find a relationship of sufficient proximity here

     proximity not just about the report made to CPS, but based on broader relation of

    university employees and students (sound in both contract and tort) standard of care requires people who have this kind of power over student‘s

    futures have duty to get facts straight before they use their powers in a negative

    way on student



     wheat pool had delivered infested wheat to the Canadian board

     violation of the applicable statute Canada Grain Act, required wheat to be sound

    and whole

     statute imposes this requirement, but does not mention any prospect of civil

    liability if it is breached (silent in this regard)

     wheat board sues Sask Wheat pool solely on its breach of statute, not based on

    common law negligence on the part of the pool

     P would not be able to establish on the facts that there had been any fault on part

    of wheat pool

     Q for ct is whether breach of statutory duty gave rise to civil liability Recognizing a new separate nominate tort would risk putting liability on Ds even

    though not at fault ct refuses to take that view



     Summary of principles of law

    o Civil consequences of breach of statute…

    o Notion of nominate tort turns down idea of new nominate tort

    o Proof of statutory breach that causes damages can be ev not definitive

    but can be evidence

    o the way that the duty is formulated in statute can be useful in giving you

    what the standard of care would be expected

    o Negligence not proven or pleaded, action must fail

     breach of that duty doesn‘t necessarily mean there is negligence

     the effect of breaching a statute will amount to evidence of neg at best

    JUST V. B.C. (1989) (SCC)

     see handout

     first principle - unless it is exempted by express statutory language to contrary, a

    public authority can be held VL for the torts committed by its employees wrt to govt‘s own independent liability – for neg in its own policy making and in

    implementing those decisions first thing to ask is whether public authority is

    vested with a statutory duty or statutory power

     if under statutory duty, then public authority will not be held liable for doing what

    it is required to do by statue

     however, it can be held in neg if it performs its statutory duty negligently also can be held liable if fails to fulfill its statutory duty

     if dealing w/ statutory power if has public discretion under the legislation (not

    required to take a particular course of action, but may) cts more cautious about

    when to impose duty of care enforceable through a private action concern that if it imposes liability for neg, substitutes cts own judgment with other

    ways to hold public authorities liable (through ballot box, traditionally) Just involves accident that took place on way to Whistler, large rock above

    highway loose and landed on P‘s car, killed his daughter and badly injured him

     P sued govt claiming that it had failed to maintain the highway properly P points to a # of factors other rock falls in this area, govt/employees

    responsible for this area knew that that tree roots can lever out rocks loose, govt

    paid inadequate attention to these factors and a reasonably conducted inspection

    would have determined that there was a risk in this area in particular First thing to think about establishing duty of care, whether or not govt authority

    owed P duty of care because there was a reltp of sufficient proximity Ct concluded that there was reltp of sufficient prox, on basis that govt builds and

    maintains the network of public highways, invites others to use them, and there is

    no other way to move around

     How is this finding affected by the fact that D is a public authority? Cts look to whether there is negligence in the POLICY as opposed to the

    OPERATIONAL stages in the decision

     Theory if complaint is about lack of care in policy matters, then neg law review

    is not appropriate, as long as exercise is conscientious and in good faith (bona fide

    exercise of discretion) then cannot be sued in tort



     Cory J as a general rule, decisions about budgetary allotments for depts of govt

    agencies are going to be classed as policy decisions

     If alleged neg is about something done at implementation or operation stage, then

    ordinary neg principles can be applied

     What constitutes an operational/policy decision can be confused don‘t have a

    crystal clear answer

     ct says when talking about policy decisions, not an expectation of govt

    formulating policy that it will only be guided by taking reas care for those that

    could be harmed by it

     If it is a true policy decision, then duty of care does not apply Policy decisions usually made by a higher level, but can be made at a lower level Budgetary decisions are most often going to be policy, even decision to inspect

    can be a policy decision

     Once decision has been made to inspect (as a policy decision), then the system of

    inspection has to be reasonable and has to be made properly

     System of inspection CAN be reviewed by ct was it reas, was it reas carried out

     Cory concludes that this was an operational decision govt already inspecting

    mountains, not about whether there is going to be inspection at all, but how it is

    carried out

     Looking at plan public authority had put out, implementing the policy which was

    to inspect in the first place

     Very strong dissent Sopinka J. if define operational decisions as broadly as

    maj does in Just, then hardly anything left to put under heading of policy In BC, time where lots of budgetary cutbacks etc really difficult to determine

    what aspect of a policy decision would actually be immune from review He argues that policy decisions have to include the CONTENT of what‘s going to

    be done

     Statement of the law remains accurate, but difficult determination to make where

    slot govt action policy or operational not all SCC decisions after Just end up

    holding govt liable

    Foreseeable Plaintiff Test


     P standing on train platform, two men run for train, aided aboard, drops unmarked

    package and explodes, threw down scales at other end of platform, hit P - Cardozo, C.J. ―Proof of negligence in the air, so to speak, will not do.‖;

    o bodily security is protected, not against all forms of interference or

    aggression, but only against some

    o nothing in the situation gave notice that the falling package had in it the

    potency of peril to persons thus removed therefore, no duty

    ; risk reasonably to be perceived defines the duty to be obeyed

    ; P must show that was ―within the eye of danger‖

    o can‘t piggyback on duty owed to carrier of package


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