Olga Redko, ‘Religious Practice as a “Thin Skull” in the Context of Civil Liability’

The thin skull rule for delineating the scope of a defendant’s liability for a negligent act stipulates that a defendant must take his victim as he finds her. If the victim suffers an unusual level of harm from a wrongful act as a result of a pre-existing vulnerability, the defendant must nonetheless compensate the victim for the full extent of the harm. Yet what if the plaintiff’s claimed vulnerability arises from religious behaviour? This paper scrutinizes whether and how Canadian courts might treat a religiously motivated action as a thin skull. After an inquiry into the origins and the function of the thin skull rule and an examination of how courts treat religious liberty, I draw on common law and civilian jurisprudence and doctrine for an analysis of what the rule intends to protect and the degree to which its goals in the private law overlap with public law safeguards for fundamental freedoms. In light of our existing conception of the functions of civil liability, as well as courts’ guidance on how best to judicially respect key freedoms, I conclude that the most logical way to deal with potential religious thin skulls would be through recourse to a balancing exercise akin to the framework established in section 9.1 of the Quebec Charter and used by the Supreme Court in Amselem. An individualized approach, rather than a blanket acceptance or rejection of religious action as a thin skull, will best serve the aims of both civil liability rules and public law principles.

Redko, Olga, Religious Practice as a ‘Thin Skull’ in the Context of Civil Liability (February 16, 2014). University of Toronto Faculty of Law Review, Vol. 72, No 1, 2014.

First posted 2014-09-25 05:38:19

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