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It Might Be Negligent, But is it Gross Negligence?

Many commercial contracts limit claims between parties, particularly for consequential losses, to instances of gross negligence. Many statutes circumscribe claims against government authorities to the same circumstances. The Police Act, for example, prohibits claims against the police except where the police have been “guilty of dishonesty, gross negligence or malicious or wilful misconduct”. The Local Government Act provides the same protection for municipal councillors, regional board members, library board members and a host of other public officials. The School Act protects teachers from claims, unless they were grossly negligent. Even the Good Samaritan Act protects providers of emergency medical services or aid to an injured person at an accident scene, “unless that person is grossly negligent.” So what does it mean to be grossly negligent?

Surprisingly, there is not an overwhelming amount of case law on the issue, likely because it does not come up often. The term has not been defined by legislation. The leading authority is a 1942 decision from the Supreme Court of Canada which dealt with the question of whether a motor vehicle accident had been caused by “gross negligence or wilful and wanton misconduct". The Chief Justice defined those terms by saying:

All these phrases, gross negligence, wilful misconduct, wanton misconduct, imply conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standards by which responsible and competent people . . . habitually govern themselves. Subject to that, I think it is entirely a question of fact . . . whether conduct falls within the category of gross negligence, or wilful misconduct, or wanton misconduct.

Early appellate authority in B.C. noted that “gross negligence” was conduct, in terms of its surrounding circumstances, that demonstrated aggravated, flagrant or extreme characteristics. It was defined as carelessness that goes substantially beyond mere casual inadvertence or momentary forgetfulness or thoughtlessness.

Echoing these remarks, the Dictionary of Canadian Law (4th ed.) defines “gross negligence” to be:

Conduct in which if there is not conscious wrongdoing, there is a very marked departure from the standard by which responsible and competent people...habitually govern themselves...a high or serious degree of negligence...

A subsequent B.C. decision introduced the concept that determining whether gross negligence was a fluid concept and depended on the nature of the standard of care owed in the circumstances. The court reasoned:

. . . it is apparent that the definition [of gross negligence] is not rigid, but rather reflects the degree to which the conduct falls below the appropriate standard of care. Therefore, in situations where the standard of care is very high. . . the standard for gross negligence is arguably anything less than ordinary care, whereas particularly egregious conduct may be required where the standard of care is low or the risks very minor.

In this particular case, a man was killed when a police car involved in a high speed chase sped through a red light and struck the man’s car. The court held that during such a chase, the police owed a high standard of care in the circumstances. In those circumstances, the officer was found to have been grossly negligent because he did not follow the police department’s written pursuit policy.

Other instances where gross negligence has been proven include the destruction of a tenant’s personal property by a grumpy landlord, causing a motor vehicle accident while passing a more powerful car, and filing tax returns replete with misrepresentations.

If establishing gross negligence is critical to advancing a legal claim, it must be specifically plead. Relying on it to be seen as a form of normal or general negligence is insufficient.

While instances of “gross negligence” appear to be thankfully rare, the term itself is common across many types of legal relationships. It is difficult to prove so if you are limiting your rights to instances of “gross negligence”, be careful.

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This blog is authored by members of the Litigation and Dispute Resolution Department. We follow new and interesting issues emerging in the legal and business communities. The wide range of experience among the members of our litigation group will provide a diverse and insightful examination of current legal trends and topics. Our goal is to provide a source of valuable information and insight on a wide variety of matters for our readers.

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