Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 242
[926] The onus of proving contributory negligence is on the Defendant. I find that the Defendant
has not met her burden. On the balance of probabilities, I find the Plaintiffs are not contributorily
negligent.
[927] In my opinion, my findings with respect to contributory negligence are also sufficient to
2010 FC 495 (CanLII)
address any allegations that the Plaintiffs failed to mitigate their losses. Where the Defendant had
encouraged and induced the Plaintiffs to remain in operation, I find that there is no valid claim that
the Plaintiffs failed to mitigate their damages.
(d) Conclusion on Negligence
[928] For the reasons above, I find that the Defendant had a duty of care to the Plaintiff, that she
breached her standard of care and was negligent in a manner that resulted in reasonably foreseeable
expectation losses for the Plaintiffs.
2. Negligent Misrepresentation
[929] The Plaintiffs also advance a claim in negligent misrepresentation. The test for negligent
misrepresentation is set out in the decision of the Supreme Court of Canada in Queen v. Cognos
Inc., [1993] 1 S.C.R. 87. There are five general requirements:
(1) There must be a duty of care based on a “special relationship” between the representor
and the representee;
(2) The representation in question must be untrue, inaccurate or misleading;