Date: Tue, 22 Apr 2003 11:06:29 -0600

From: Lewis Klar

Subject: Reasonable Reliance Case

Hello again:

On the merits of the point, my view has always been that it is inconsistent to say that there can be reasonable reliance for the duty but unreasonable reliance for contributory negligence.

An argument which might however be made is this.

A duty is based on foreseeability of reliance and a conclusion that this reliance would be reasonable at the time the representation is made. If these conditions exist, the defendant has a duty to take care.

Contributory negligence however can occur if circumstances later arise which would make it unreasonable for the plaintiff to act on the representation. If the plaintiff does so, he/she can be contributorily negligent. This reasoning has the merits of not allowing the plaintiff's subsequent negligence to negate the duty of care which the defendant had when the representation was actually made. It also makes the plaintiff partly responsible for its own negligence.

Does this make sense? See, by the way, Cullity J. in Transamerica Life Insurance v Hutton (2000), 33 RPR (3d) 1 (Ont.) for further discussion.

Lewis Klar

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