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Wrongful birth as negligent misrepresentation.

     Duty of Care
     Untrue, Inaccurate, or Misleading Representations
     Standard of Care
     Reasonable Reliance


In Canadian jurisprudence, the cause of action described as wrongful birth is based on "the post-conception interference by the tortfeasor with the mother's lawful right to terminate the pregnancy had an informed decision been available to her". (1) That is, a mother's claim of wrongful birth is based on her contention that "but for" a doctor's negligence, her child would not have been born. Wrongful birth cases usually involve the unwanted birth of a disabled child, (2) and typically arise in one of two situations. The first type of situation can be described as performance-based wrongful birth. It involves an action against a doctor who negligently performs a medical procedure on a pregnant woman, with the failed medical procedure resulting in the birth of an unwanted child. (3) The second type of situation can be described as reliance-based wrongful birth. It involves an action against a doctor who provides inaccurate or misleading medical advice to a patient, with the patient's reliance on the advice resulting in the birth of the unwanted child. (4) In either case, the unwanted birth results in a substantial economic outlay on the part of the parents in caring for the child.

Currently, courts use a traditional negligence framework to analyze both performance-based and reliance-based wrongful birth claims. This article will contend that negligent misrepresentation is a more appropriate framework for deciding reliance-based wrongful birth cases. (5) The basis for this conclusion is that in reliance-based situations the traditional negligence approach disregards the relationship between the parties--actions taken by the doctor and injury suffered by the plaintiff. Conceptually, a negligent misrepresentation framework would more appropriately characterize the defendant's wrong as giving inaccurate or misleading advice to the plaintiff, causing the plaintiff to give up a more economically beneficial position.

This article is structured as follows: Part II provides context for the subsequent discussion by defining and comparing wrongful birth, wrongful pregnancy, and wrongful life claims. Part III canvasses relevant jurisprudence to exemplify and contrast performance-based and reliance-based wrongful birth situations. Part IV outlines the problems with using a traditional negligence framework in analyzing reliance-based wrongful birth claims. Part V argues that negligent misrepresentation should have instead been considered as the appropriate framework for analyzing reliance-based wrongful birth claims. Part VI then shows how the negligent misrepresentation framework is a conceptually more fitting analytical framework for reliance-based wrongful birth claims. Part VII considers the implications of using the negligent misrepresentation framework in analyzing wrongful birth claims, and Part VIII concludes.


Although the term wrongful birth is often used in conjunction with the terms wrongful pregnancy and wrongful life, these three terms describe factually distinct situations. To provide context for the subsequent analysis of wrongful birth, it is useful to define and compare these three terms.

Wrongful pregnancy cases typically involve a mother claiming damages from her doctor based on the doctor's negligence resulting in her unwanted pregnancy. (6) In other words, but for the doctor's negligence, the mother's child would not have been conceived. Wrongful pregnancy and wrongful birth can be distinguished in that wrongful birth cases involve post-conception negligence, whereas wrongful pregnancy cases involve pre-conception negligence. (7) Although wrongful pregnancy claims are generally based on a failed sterilization procedure, (8) a patient's reliance on her doctor's inaccurate or misleading statements may also result in an unwanted pregnancy. (9) It is therefore conceivable that a reliance-based wrongful pregnancy claim for economic damages could also fit conceptually within the negligent misrepresentation framework. For the sake of simplicity, however, this article will focus mainly on wrongful birth.

A wrongful life action is similar to a wrongful birth action, with the main difference being the identity of the plaintiff. A wrongful life action involves a claim "where the child seeks a financial award for its birth with allegedly unsatisfactory traits or prospects, in circumstances where if the alleged negligence had not occurred it would not have been conceived or born at all". (10) While the child is the plaintiff in a wrongful life claim, the mother is the plaintiff in wrongful birth and wrongful pregnancy claims.

In most common law jurisdictions that have considered wrongful life claims, courts have typically held that a wrongful life action is not permitted. (11) In Canada, claims brought by a child born with abnormalities traditionally fell into one of two categories:

1. cases in which the abnormalities [were] caused by the wrongful act or omission of another; and

2. cases in which, but for the wrongful act or omission, the child would not have been born at all. (12)

If the child's claim fell into the latter category, then the claim was categorized as wrongful life and there was generally no cause of action. (13) In Paxton v Ramji, (14) however, the Ontario Court of Appeal rejected this categorical approach. (15)

In Paxton, a child claimed damages against a doctor who prescribed her mother acne medication that could cause birth defects if the mother became pregnant while taking the medication. (16) As a result of the mother taking the medication while pregnant, the plaintiff was born with severe disabilities. (17) The Court held that "by asking whether or not the claim before the court should be characterized as one for wrongful life, Canadian courts have asked the wrong question", and that the proper approach was to consider whether the child's claim fit "within an established category of relationship giving rise to a duty of care". (18) In doing so, the Court in Paxton refused to follow the traditional categorical approach outlined by the Manitoba Court of Appeal in Lacroix (Litigation Guardian of) v Dominique, (19) which held that a doctor could be liable to a child for causing her direct damage while she was a fetus, but that the doctor would not be liable to the child for damages that the child would not have suffered had she not been born at all. (20) According to the Court in Paxton, the distinction in Lacroix was "malleable and [did] not provide a rigorous analytical framework for deciding the issue whether the proposed duty of care should be recognized". (21) The Court in Paxton ultimately concluded that the doctor owed no duty of care to the child when the doctor prescribed acne medication to the child's mother. (22)

In addition to abandoning the traditional categorical approach to wrongful life, the Ontario Court of Appeal in Paxton did not distinguish between wrongful birth and wrongful pregnancy claims. Instead, the Court referred to both claims as wrongful birth. (23) The Court noted that although some courts maintained a distinction between wrongful pregnancy and wrongful birth, nothing turned on this distinction in Paxton and the Court could therefore view wrongful birth and wrongful pregnancy as the same cause of action. (24)


As discussed, wrongful birth claims can describe two situations. The first is where the doctor's negligence directly causes the birth of the child. This occurs when, for example, the doctor negligently performs an abortion (performance-based wrongful birth). (25) The second wrongful birth situation exists when a doctor negligently causes the patient to rely on a misrepresentation and the patient forgoes the option to terminate the pregnancy as a result of the reliance (reliance-based wrongful birth). The second situation can occur when the doctor fails to advise the patient properly, or makes an inaccurate statement. (26)

Cherry v Borsman (27) is an example of a performance-based claim, where the physical actions of the doctor led to the unwanted birth of the child. In Cherry, the patient decided she wanted to terminate her pregnancy and contacted her doctor to arrange an abortion. (28) The doctor concluded that the plaintiff had been pregnant for less than six weeks despite evidence to the contrary. (29) Because the stage of the pregnancy determined the size of the instrument required to perform the abortion, (30) the doctor ultimately chose the wrong instrument and the abortion failed. (31) As a result, the infant was born disabled and the doctor was held liable for negligently performing the abortion procedure. (32)

In contrast to a negligently performed abortion, a patient may also submit a claim for damages that result from a physician's failure to inform. Arndt v Smith (33) is an example of such a reliance-based claim. In Arndt, the patient claimed that her physician failed to inform her of the risks that contracting chicken pox during pregnancy posed to her fetus. (34) The patient's child was born disabled because of the chicken pox that the patient contracted while pregnant. (35) Nevertheless, the majority of the Court ultimately held that the doctor had not caused the mother harm. (36) Similarly, in McDonald-Wright (Litigation Guardian of) v O'Herlihy, (37) the patient claimed that the doctor was negligent for failing to inform her of a neural tube defect, and alleged that she would have terminated her pregnancy had she obtained proper information. (38) The jury found that the doctor was not negligent. (39) Further, in Krangle (Guardian ad litem of) v Brisco, (40) the doctor was found to be negligent for failing to inform his patient that she should undergo a test to determine whether her child would be born with Down's syndrome. (41)

Similarly, a patient may also submit a claim for damages on the basis of her physician's incorrect statements. For example, in Mickle v Salvation Army Grace Hospital Windsor Ontario, (42) the mother claimed that her doctor was negligent in preparing a report based on an ultrasound scan, and that had he properly prepared the report, the mother would have been properly informed and would have terminated her pregnancy. (43) The doctor's report stated that there was "no fetal abnormality", and the patient claimed that this statement was a misdiagnosis. (44) Ultimately, the Court concluded that the statement was not a misdiagnosis and the doctor was not negligent, (45) but the case nevertheless serves as another example of a reliance-based wrongful birth claim.


To recover under the traditional negligence framework, a plaintiff must prove that the doctor owed a duty of care to the plaintiff, breached the standard of care, and caused harm to the plaintiff resulting in damages. (46) Although wrongful birth cases have been resolved using the traditional negligence framework, there are inherent problems in the application of this framework to wrongful birth actions.

In most reliance-based wrongful birth actions the patient's person or property will not be physically harmed. (47) Because the traditional approach to negligence generally requires that a person suffer physical harm or property damage to recover for an economic loss, (48) using the traditional approach in reliance-based wrongful birth actions is conceptually problematic. Under the traditional approach, harm to person or property is thought of as a consequence of the "injury to an existing legally protected interest which rightfully belongs to the plaintiff as against the defendant", (49) and it is the injury to the existing legal right that the law of negligence aims to compensate. (50) But in cases of reliance-based wrongful birth, the actions of the doctor do not injure an existing legal right of the patient in the traditional sense because no physical damage to person or property typically occurs--the patient can be viewed as seeking compensation for pure economic loss. (51) Negligent misrepresentation evolved alongside the traditional approach specifically to allow recovery for pure economic loss in situations that did not involve injury to personal or proprietary rights in the traditional sense but instead involved "a right based on justified detrimental reliance". (52) Because reliance-based wrongful birth claims are based on detrimental reliance and not injury to person or property, it is unclear why such claims are being resolved under the traditional approach instead of negligent misrepresentation.

In reliance-based wrongful birth cases there is also an issue with the application of the traditional approach to causation. In performance-based wrongful birth cases, such as those involving a negligently performed abortion, there is no issue as to whether the mother intended to terminate her pregnancy: the evidence establishes that the mother requested that her doctor perform an abortion. As a result, the causation requirement in the traditional negligence framework is sufficient to determine whether the mother would have had an abortion but for the doctor's negligence because the evidence unequivocally demonstrates that the mother intended to terminate her pregnancy. In contrast, the traditional approach to causation does not work well in reliance-based wrongful birth cases. This is because the traditional framework fails to provide a proper mechanism for courts to determine whether the mother is being truthful when she claims that she would have had an abortion absent her doctor's negligence. In reliance-based wrongful birth situations, unlike negligent abortion cases, there is no indisputable evidence that proves the mother would have terminated her pregnancy if she had been properly informed that she may give birth to a disabled child.

In Arndt, the Supreme Court of Canada considered a reliance-based wrongful birth case and concluded that the causation analysis requires courts to determine whether a reasonable mother in similar circumstances to the plaintiff would have aborted the child if she had been made aware of the risk that her child may be born disabled. (53) The reasonable mother standard is a modified objective standard that takes into consideration characteristics of the plaintiff such as age, income, marital status, and any of the plaintiff's reasonable beliefs, desires, and fears. (54) In deciding that the modified objective test was the appropriate standard, the Supreme Court considered the possibilities of a purely objective standard and a purely subjective standard. (55) The Court discarded the objective standard because it focused too narrowly on medical evidence and would result in a test that disregards the plaintiff's testimony. (56) Conversely, the Court rejected the subjective standard largely because of moral hazard issues with the plaintiff's ability to falsely claim that she would have aborted the child. (57)

Although the modified objective standard attempts to alleviate the concerns of a purely objective or purely subjective standard, the hybrid standard remains conceptually problematic: the plaintiff can still bring an action falsely claiming that she would have aborted the fetus. The modified objective standard simply requires that the mother prove that the risk of her child being born disabled was such that a reasonable mother in similar circumstances would have elected to terminate the pregnancy. (58) In other words, a claim by a mother who would have actually had an abortion will be barred if the risk of her child being born disabled was not so substantial that a reasonable mother would have terminated the pregnancy. Conversely, a false claim by a mother who would not have actually had an abortion will succeed if the risk of her child being born disabled was sufficiently substantial.

As a result of the approach to causation approved in Arndt, the focus of courts was shifted from the harm suffered by the actual plaintiff to the harm suffered by a reasonable mother. By introducing a modified objective standard into wrongful birth, the exercise shifts from analyzing the parties' relationship vis-a-vis each other to analyzing the effect of the doctor's actions on an abstract person. Ultimately, the modified objective test may deny liability in cases where the mother would have terminated her pregnancy, or find liability in cases where an untruthful mother would not have terminated her pregnancy. Further, as medical technologies advance and doctors are able to detect more minor health risks to the child before birth, the number of situations where a mother would have actually terminated her pregnancy but for the doctor's negligence may increase. Despite such technological advances, it is unclear whether courts will be willing to recognize these less severe claims. (59)


In Paxton, the Ontario Court of Appeal justified reconsidering the basis for wrongful life claims on the grounds that the common approach to wrongful life lacked "a rigorous analytical framework". (60) Similarly, the inherent problems in the application of the traditional negligence approach to reliance-based wrongful birth claims warrants a reconsideration of the wrongful birth cause of action.

A reliance-based wrongful birth claim is based on a wrong stemming from misinformation rather than physical action, (61) and can be viewed as a claim for pure economic loss. (62) Although a doctor's negligent misrepresentation may cause physical injury to the mother, the mother's primary claim is for the cost of raising the child. For the reasons outlined in Part IV, it is appropriate to consider whether reliance-based wrongful birth claims are more suitably resolved under an existing category of compensable economic loss.

Historically, courts were hesitant to apportion liability for pure economic loss because of concerns about indeterminate liability. (63) Prior to Canadian National Railway v Norsk Pacific Steamship Co, (64) courts recognized economic loss in a limited number of situations, including negligent misrepresentation. In Norsk, McLachlin J concluded that the traditional view of economic loss should be abandoned in favour of an approach that focuses on the proximity of the parties. Specifically, McLachlin J stated that "sufficient proximity has been found in the case of negligent misstatements where there is an undertaking and correlative reliance". (65) In Norsk and subsequent jurisprudence, the Supreme Court of Canada set out the requirement that courts must consider whether proximity exists under an existing category of economic loss before considering whether a new category should be recognized. (66) Despite Arndt being decided after Norsk, the Supreme Court of Canada's decision in Arndt has been viewed as treating the wrongful birth issue as a subhead of medical negligence. (67) The majority did not address whether the cause of action would be more properly determined under the existing category of negligent misrepresentation. If the Supreme Court in Arndt had applied the approach set out in Norsk, it would have considered whether an existing category was applicable. In light of the previously indicated problems with using a traditional negligence framework in reliance-based wrongful birth cases, an alternative to the existing medical malpractice category should have been considered. Given the coherence of wrongful birth and negligent misrepresentation demonstrated below, courts should consider applying the existing negligent misrepresentation framework to reliance-based wrongful birth claims. (68)


As illustrated above, the traditional negligence approach fails to properly address and consider the relationship between the patient and the doctor. An approach is required that recognizes and addresses the special relationship, and compensates the patient for her reliance on the doctor's representations where the reliance results in a detrimental change in position. As set out below, negligent misrepresentation would more properly characterize and evaluate the relationship between parties in wrongful birth cases. (69)

Before embarking on an analysis of wrongful birth and negligent misrepresentation, it should be noted that the factors and requirements for liability are partly shaped by the historical treatment of pure economic loss. As stated above, historically, courts were concerned about indeterminate liability. (70) In an attempt to control the possibility of indeterminate liability, the jurisprudence has delineated a list of requirements for establishing liability under negligent misrepresentation:

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;

3. the representor must have acted negligently in making said misrepresentation;

4. the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and

5. the reliance must have been detrimental to the representee in the sense that damages resulted. (71)


As is evident from medical malpractice jurisprudence, a doctor owes his or her patient a duty of care; (72) "[t]here can be no doubt that the doctor/patient relationship is one of proximity in which the former clearly owes the latter a duty of care." (73) Wrongful birth, however, seems to have received minimal historical attention and justification. In Mickle, it was observed that "the claim for wrongful birth slipped quietly into Canadian tort law simply as a type of medical malpractice case without any fundamental analysis or delineation of the extent of such a claim". (74) Because determining whether a duty of care exists under negligent misrepresentation is fairly complex and involves many considerations that relate to concerns such as indeterminate liability and the nature of the relationship between the parties, it is worthwhile to evaluate the existence of a duty of care in the context of wrongful birth to ensure the relationship is properly characterized, and that liability is imposed only if the defendant assumes the risk of liability. The benchmark test to establish a novel duty of care was set out in Anns v Merton London Borough Council, (75) and adopted by the Supreme Court of Canada in Kamloops (City) v Nielsen. (76) The test involves asking the following questions:

1. is there a sufficiently close relationship between the parties (the [defendant] and the person who has suffered the damage) so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person? If so,

2. are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise? (77)

Sufficiently Close Relationship

The test for proximity under negligent misrepresentation is slightly different than the typical two-stage Anns test adopted in Kamloops. In Hercules Management Ltd v Ernst & Young, (78) the Court was concerned that the traditional first step of the Anns test did not adequately capture the relationship between the parties, so the Court modified the first part of the test to better capture the significance of the plaintiff's reliance on the defendant's representation. (79)

(1) "[T]he defendant ought reasonably to foresee that the plaintiff will rely on his or her representation" (80)

The first requirement set out in Hercules is that the defendant must have reasonably foreseen that the plaintiff would rely on the defendant's statement. The main premise of the doctor-patient relationship is that the doctor will have the patient's best interests in mind. Doctors present themselves to the public as individuals who possess knowledge and wisdom that the layperson does not possess. If laypeople could accurately assess, diagnose, and treat their own medical issues, the role of the doctor would be of little value. Further, when the patient is competent and alert, the patient has the final say on medical operations; (81) so from an advisory perspective, all information that the doctor gives to the patient is intended to provide that patient with the opportunity to make an informed decision. (82) Due to the special nature of the doctor-patient relationship, a doctor would have difficulty proving that it was not reasonable to foresee that a patient would rely on the doctor's representations.

(2) "[R]eliance by the plaintiff would, in the particular circumstances of the case, be reasonable" (83)

Hercules introduced a second requirement to determine proximity: reliance must be reasonable. Due to concerns of indeterminate liability, this requirement seems appropriate, because unreasonable reliance would work against the underlying concept that the defendant assumed the risk of liability. To help determine whether reliance was reasonable, Hercules delineated several indicia to consider:

1. The defendant had a direct or indirect financial interest in the transaction in respect of which the representation was made.

2. The defendant was a professional or someone who possessed special skill, judgment, or knowledge.

3. The advice or information was provided in the course of the defendant's business.

4. The information or advice was given deliberately, and not on a social occasion.

5. The information or advice was given in response to a specific enquiry or request. (84)

Reliance will most likely be reasonable when the representation occurs within the doctor's office under typical doctor-patient conditions, because the normal doctor-patient relationship would usually satisfy at least the first four factors. The fifth factor should not be adhered to strictly in the doctor-patient context because of the very unique structure of the relationship. As discussed above, the doctor presents himself or herself as an expert, and the patient relies on information provided by the doctor to make a decision. As a result, in certain contexts, a patient will reasonably rely on a doctor's representation when the doctor fails to inform the patient or makes an incorrect statement in response to a general request of the patient.

Limiting Factors

Negligent misrepresentation jurisprudence has developed several factors that act as safeguards against imposing indeterminate liability. (85) For example, courts may take into account the validity of disclaimer clauses. (86) Courts should not, however, consider true policy considerations such as chilling effects, (87) as these considerations import issues that are external to the parties. Further, for a duty of care to exist under negligent misrepresentation, the "end and aim" rule must be satisfied. (88) The end and aim rule requires that the plaintiff use the statement "for precisely the purpose or transaction for which it was prepared". (89) Courts can use the end and aim rule to ensure that a defendant is not held liable unless the defendant assumed liability with respect to his or her representation.

In the context of wrongful birth, if a doctor was unaware of the plaintiff's use of the doctor's statement, or the plaintiff's use of the doctor's statement was not the use for which the doctor prepared the statement, then courts should find that the doctor did not assume responsibility for the representation. For example, when a doctor conducts a medical test solely out of concern for the mother's health and not the fetus', a court should find that a representation such as "the results of the test do not raise concerns" is outside the scope of the doctor's duty of care. (90) For a plaintiff to rely, when deciding to forgo an abortion, on the representation that the test results do not raise any concerns would ignore the purpose for which the statement was prepared: assessing the implications of the test results on the mother, not on the fetus. Further, when a doctor advises the patient that the doctor will not provide medical advice regarding the fetus, then the doctor should not be held liable for failing to inform the mother of fetal issues, because the doctor did not assume liability. (91) To ensure that the doctor is not found liable when the doctor did not assume liability, courts should focus on whether the doctor's representations relate to the fetus, and not exclusively to the mother.


According to Queen v Cognos, (92) the second requirement of negligent misrepresentation is that the defendant's representation be "untrue, inaccurate, or misleading". (93) If a doctor's representations to a mother were true, accurate, and not misleading, then the doctor cannot have caused the loss of the mother's opportunity to have an abortion. The requirement that the representation be untrue, inaccurate, or misleading might appear to drastically narrow the circumstances in which a claim of wrongful birth can be made, because the wording implies a positive action by the doctor and many of the existing wrongful birth cases involve a failure to inform. (94) However, this requirement may be satisfied through "silence, or implied misrepresentation". (95) Consequently, similar to other situations of negligent misrepresentation, (96) courts may hold liable a doctor who omits a material fact or fails to inform the mother of a material fact in the doctor-patient context because of the relatively large amount of reliance that a patient places on his or her doctor's advice. Where the remainder of the negligent misrepresentation elements are met, a failure to inform should constitute a misrepresentation.


Under negligent misrepresentation, the standard of care for wrongful birth would not be significantly different than the standard under the existing negligence framework. Currently, doctors must "conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances". (97) The standard may also need to reflect the special knowledge of the doctor: "A specialist...who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field." (98) These concepts have been relied on to determine liability for wrongful birth. (99) In contrast, the proper standard of care for negligent misrepresentation has been stated as "a duty to exercise such reasonable care as the circumstances require to ensure that representations made are accurate and not misleading". (100) Because wrongful birth claims take place in the context of the doctor-patient relationship, a court should interpret the standard of care in light of the existing medical negligence and wrongful birth jurisprudence. For example, the standard of care under negligent misrepresentation should be met if a doctor's statement or decision to omit information is consistent with the representations of a "prudent and diligent doctor in the same circumstances". (101) Consequently, courts would not need to modify the standard of care in any significant way when moving from a traditional negligence framework to a negligent misrepresentation framework.


Negligent misrepresentation addresses causation by determining whether the plaintiff reasonably relied on the representation. (102) The emphasis on causation under negligent misrepresentation is drastically different than the emphasis under the traditional negligence approach. As discussed, the traditional approach analyzes causation by using the modified objective test to determine whether the risk that the child would be born disabled was so substantial that it is reasonable to conclude that the mother would have terminated the pregnancy but for the doctor's negligence. Under negligent misrepresentation, causation requires courts to determine whether it was reasonable for the plaintiff to rely on the defendant's representation. Though the word "reasonable" is often associated with objective standards, reasonable reliance focuses instead on whether it is fair to link the parties. Specifically, whereas a court may use a modified objective standard to inform an honest mother that it does not accept her claim that she would have terminated the pregnancy (a positive statement), a court may use a reasonable reliance standard to determine whether the mother should have relied on the doctor's representation (a normative statement).

Similar to the duty of care, the reasonableness of reliance will depend on the context. In Haig v Bamford, (103) the Court found the defendant liable where investors made investment decisions based on financial statements that the defendant had negligently prepared, because the defendant prepared the financial statements for investment purposes. In contrast, the Court in Hercules did not hold the defendants liable where investors made personal investment decisions based on financial statements that they alleged were negligently prepared by the defendants, because the purpose of the statements was not to provide investment advice. (104) Similarly, courts should consider the purpose of the doctor's representation. For example, a mother's reliance would be more reasonable when a doctor falsely and negligently informs the mother that she is carrying a "healthy baby boy" in response to the mother's direct request for an ultra sound test conducted to detect a severely disabling genetic disease, than when a doctor falsely and negligently informs a mother that she is carrying a "healthy baby boy" in response to the mother's direct request for an ultra sound test solely to determine the gender of the child. Likewise, where a mother asks her doctor specifically about the effect of chicken pox on her fetus, the mother may reasonably rely on her doctor's failure to inform her of minute risks in forgoing the option to terminate her pregnancy.

In addition to the reliance being reasonable, the representation must have in fact been relied on. (105) For example, in The Pas (Town) v Porky Packers Ltd, (106) the Court found that neither the plaintiff nor its representative relied in fact on allegedly incorrect land zoning advice provided by the defendant, because the representative was more knowledgeable than the defendant with respect to the subject matter of the advice. (107) Applied to wrongful birth, this requirement may deny liability if, for example, the mother had more medical knowledge than the doctor--for example, where the patient is an obstetrician and the doctor is a general practitioner and both receive the same information regarding the fetus. Further, where the plaintiff receives supplementary advice that is more credible than the advice provided by her primary doctor or that indicates her primary doctor failed to inform, it would be unreasonable for a plaintiff to disregard the supplementary information from the more credible source. For example, where a plaintiff consulted a lawyer regarding the accuracy of a document after receiving inaccurate information from the defendant real estate agent, the real estate agent was not found liable. (108) Thus, where a general practitioner negligently asserts that the fetus is normal or fails to inform the mother of fetal abnormalities, but then recommends a further test by a specialist who reveals abnormalities before the window to terminate the pregnancy closes, reliance on the general practitioner's representations would not be reasonable in fact because the patient received the correct information from an equivalent or more reliable source.

Superficially, the requirement to determine whether reliance was reasonable raises the possibility that the doctor could contend that the mother would not have terminated the pregnancy even if the circumstances of the fetus were known, and as a result, the issues of a modified objective test for causation, as in Arndt, would remain. It has been definitively stated, however, that a defendant who "asks a court to find a transaction whose terms are hypothetical and speculative, should bear the burden of displacing the plaintiff's assertion of the status quo ante". (109) It has further been stated that "mere 'speculation' on the part of the defendant will not suffice". (110) For example, strict religious beliefs that bar abortion, or the "window of opportunity" being closed by statute, are concrete reasons that go beyond mere speculation. Though these judicial statements appear to reverse the burden, the burden only shifts after the plaintiff has satisfied the court that reliance was reasonable. As pointed out by Bruce Feldthusen, "The recognition of a duty presupposes that the plaintiff reasonably relied on the representation." (111) Therefore, many of the considerations that courts implicitly consider in the modified objective standard are irrelevant under negligent misrepresentation. For example, although the modified objective approach to causation may take into account the financial position of the plaintiff, financial wealth is irrelevant to the reasonableness of reliance.


Although the traditional negligence framework requires "the plaintiff to prove on a balance of probabilities that [she] has sustained some loss [with damages for lost opportunity, this] requirement is met by proof that the tort caused the loss of ... [an] opportunity of some value". (113) Accordingly, the plaintiff can prove that she sustained damage by proving that the doctor's negligence caused a loss of the opportunity to terminate the pregnancy.

From a pure economic loss perspective, whether the child is normal or disabled is irrelevant since the mother's claim is that the representation induced reliance, which caused a change in position or caused her to abandon the opportunity to terminate the pregnancy. For example, if a pregnant patient is considering an abortion and contacts her physician, who is alert to how many weeks the patient has been pregnant but negligently informs her that the window of opportunity has statutorily passed, and the patient forgoes an abortion as a result, it is difficult to see how this scenario would not meet the criteria stated above. Given the many factors that must be satisfied, it will be fairly difficult for liability to be found in the absence of abnormal birth defects since, typically, untrue or misleading statements are premised on abnormality discussions. In addition, although the child may be perfectly healthy, it is apparent that the costs incurred are a consequence of the doctor's misrepresentation. As with the case of caring for a disabled child, the possibility of substantial benefits being gained through parenthood of a healthy child may be weighed against the pecuniary loss. This weighing of benefits and burdens might result in courts finding that the benefits to the mother outweigh the burdens and thus the mother has not satisfied the requirement of damages. Of course, the outcome will depend on the approach to damages that a court imposes. (114)

Although a wrongful birth claim is primarily for economic loss, the existing wrongful birth jurisprudence recognizes that damages resulting from wrongful birth are not limited to economic harms such as lost wages or the costs of caring for a child with a disability, and can include non-pecuniary damages. For example, in RH v Hunter, (115) a mother was awarded $130,000 for general damages, including emotional stress, after her doctors failed to inform her of the risk that her sons may be born with Duchenne muscular dystrophy. (116) Even where a child is born healthy, courts may consider awarding non-pecuniary damages. In Fredette v Wiebe, (117) where a mother gave birth to a healthy child, the non-pecuniary damages resulting from, among other things, anxiety and inconvenience were estimated to be worth $20,000. (118) In contrast, the nature of the situations in which negligent misrepresentations arise are typically conducive to claims for primarily economic damages because the defendants are typically giving advice on which the plaintiffs rely to make decisions that have primarily economic consequences. (119) Negligent misrepresentation does not, however, preclude non-pecuniary damages. Although the Supreme Court of Canada was split on the reasons for allowing the appeal in Cognos, all the justices agreed with the trial judge's decision to grant $5,000 for emotional stress. As a result of this decision, it is clear that non-pecuniary damages similar to those in previous wrongful birth cases could still be granted under a negligent misrepresentation framework.

Although it is suggested above that lack of physical harm supports categorizing wrongful birth under negligent misrepresentation, there could be situations where negligent misrepresentation causes physical harm to a mother. The use of negligent misrepresentation, however, does not depend on whether the mother sustains physical harm, because such harm would not have been caused by the action of the medical professional, but instead would have been caused by the lost opportunity via the misrepresentation. As stated by McLean J in Hunter, "[I]t does not seem to affect the result in any way how we categorize the loss. The compensation principle remains the same." (120) In the spirit of these statements, whether the loss is economic or physical, the mother should receive compensation for the same categories of harm as are awarded under the current treatment.


Because of the existing causation issues and the nature of the mother's claim, negligent misrepresentation provides a conceptually better framework for determining wrongful birth cases. However, there are several possible implications from moving from the existing approach to negligent misrepresentation. First, because medical professionals currently operate by adhering to existing negligence standards, replacing the traditional negligence framework used in existing jurisprudence with a negligent misrepresentation framework could create uncertainty. Further, because the issue was dealt with by the Supreme Court of Canada in Arndt, a change in the legal framework would require both a plaintiff who is willing to take the case to the Supreme Court and a Supreme Court that is willing to hear the case despite the existing jurisprudence.

The traditional negligence approach possibly allows for a wider range of potential defendants, as negligent misrepresentation requires the plaintiff to establish a special relationship with the defendant. Consequently, a plaintiff might be left without a proper defendant because of the fragmented procedures that are performed by a host of medical professionals who might never come into contact with the plaintiff. For example, where a mother is treated by her primary doctor, who in turn relies on an off-site specialist, it may be more difficult to establish a special relationship between the mother and the off-site specialist. Arguably, however, the mother-specialist relationship would satisfy the five requirements for establishing proximity set out in Hercules, though it is possible that a court might not find a special relationship between a specialist and the mother, and as a result, the mother would go uncompensated despite negligent actions by the professional.

Further, the fifth factor from Hercules--requiring the plaintiff to have made a specific inquiry--could be interpreted so that either the mother or the doctor is disadvantaged. On the one hand, it is possible that this factor could be narrowly construed, and as a result, valid claims for compensation might be denied because the mother's inquiry was not specific enough. On the other hand, courts might interpret this factor to be redundant and defer to the doctor-patient relationship as satisfaction of a de facto specific inquiry. If the former happens, the ability of plaintiffs to successfully claim will be reduced when compared to the current approach, as the current approach does not require the mother to have made a specific inquiry. (121) If the latter interpretation is used, then the likelihood of success should remain unchanged.


Courts should use a negligent misrepresentation framework to resolve a mother's claim in reliance-based wrongful birth cases, because the modified objective standard is conceptually unsatisfactory and the nature of the mother's claim is for economic loss. Due to the doctor-patient relationship, imposing liability for wrongful birth under the negligent misrepresentation framework would be appropriate when the doctor invites reliance, the patient reasonably relies, and in so relying, the patient gives up the opportunity to terminate the pregnancy. In addition, other factors--such as the purpose of the representation--would serve to appropriately sever the causative link between the patient and the doctor in situations where it cannot be said that the doctor assumed the risk of liability with respect to the representation. Further, because of the doctor's invitation to rely, the doctor would not be able to avoid liability by merely depending on a modified objective test. Under the negligent misrepresentation framework, the doctor would have to introduce concrete evidence that the patient did not in fact rely on the representation when deciding to give birth to the child. Because the wrongful birth jurisprudence has inappropriately forced the factual situation into the traditional negligence framework in a way that typically would lead to the same outcome, moving to a negligent misrepresentation framework would provide a more conceptually accurate analytical framework while not significantly changing the number of wrongful birth cases litigated. As a result, analyzing wrongful birth cases using the negligent misrepresentation framework should reduce confusion for decision makers who have to apply the law to facts while not unnecessarily increasing the frequency of litigation.

* The author is grateful to Professor Ernest J Weinrib for the inspiration to expand and improve this article. The author also acknowledges the valuable assistance of the editors of the University of Toronto Faculty of Law Review. Most importantly, the author thanks Lauren for putting up with his grit. All opinions, errors, and omissions are the author's own.

(1) Kealey v Berezowski (1996), 30 OR (3d) 37 at 53, 136 DLR (4th) 708 (Ct J (Gen Div)) Lax J [Kealey].

(2) Ibid.

(3) See e.g., Cherry (Guardian ad litem of) v Borsman, 94 DLR (4th) 487, [1992] 6 WWR 701 (BCCA) [Cherry cited to DLR] (doctor negligently performed an abortion leading to the birth of a disabled infant), leave to appeal to SCC refused, [1993] 2 SCR vi, 99 DLR (4th) vii.

(4) See e.g., Arndt v Smith, [1997] 2 SCR 539, 148 DLR (4th) 48 [Arndt cited to SCR] (patient relied on the advice of her doctor and claimed that the doctor failed to inform her of the risks that contracting chicken pox during pregnancy posed to her fetus).

(5) This article will apply the Canadian treatment of negligent misrepresentation. There has been criticism directed toward the current Canadian treatment: see e.g., Ernest J Weinrib, "The Disintegration of Duty" (2006) 31:2 Advocates' Q 212 at 241-42; however, the main purpose of this article is not to question the jurisprudence, but to treat it as governing law.

(6) See Kealey, supra note 1 at 54. See e.g., Cataford c Moreau, [1978] CS 933, 114 DLR (3d) 585 (Qc Sup Ct); Udale v Bloomsbury Area Health Authority, [1983] 2 All ER 522, [1983] 1 WLR 1098 (QBD); Thake v Maurice, [1984] 2 All ER 513, [1985] 2 WLR 215 (QBD); Emeh v Kensington & Chelsea & Westminster Area Health Authority, [1985] QB 1012, [1984] 3 All ER 1044 (CA (Civ Div)). See also Bernard Dickens, "Wrongful Birth and Life, Wrongful Death Before Birth, and Wrongful Law" in Sheila McLean, ed, Legal Issues in Human Reproduction (Brookfield: Gower, 1989) 80 at 82.

(7) Kealey, supra note 1 at 54.

(8) Ibid.

(9) See e.g., Lininger v Eisenbaum, 764 P (2d) 1202 (Colo 1988) [Lininger] (a mother brought a claim against her doctor based on statements that he made and that she subsequently relied on in deciding to conceive a child); TG v Boutros, 2009 ABQB 651, 17 Alta LR (5th) 361 (a patient claimed that her doctor had not informed her of the risk that she could get pregnant despite undergoing a properly performed tubal ligation procedure).

(10) Shaun D Pattinson, "Wrongful Life Actions as a Means of Regulating Use of Genetic and Reproductive Technologies" (1999) 7 Health LJ 19 at 20-21.

(11) See e.g., Paxton v Ramji, 2008 ONCA 697 at paras 26, 28, 92 OR (3d) 401 [Paxton].

(12) Lacroix (Litigation Guardian of) v Dominique, 2001 MBCA 122 at para 24, 202 DLR (4th) 121 [Lacroix], leave to appeal to SCC refused (2002), 163 Man R (2d) 247, 289 NR 202.

(13) Lacroix, supra note 12 at paras 24, 28-37.

(14) Supra note 11 .

(15) Ibid at paras 29-30.

(16) Ibid at para 2.

(17) Ibid.

(18) Ibid at paras 29-30.

(19) Ibid at paras 51-53, citing Lacroix, supra note 12.

(20) Ibid at paras 24-37.

(21) Paxton, supra note 11 at para 51.

(22) Ibid at para 64 (the Court concluded that the harm to the potential child was reasonably foreseeable but that policy considerations militated against a finding that there was a prima facie duty of care owed).

(23) Ibid at para 27, n 6.

(24) Ibid (because Paxton involved a claim for wrongful life, and the Court of Appeal's decision did not turn on the distinction between wrongful pregnancy and wrongful birth, the Court's conflation of the terms should be viewed as obiter dicta).

(25) See e.g., Cherry, supra note 3.

(26) See e.g., Arndt, supra note 4 (failure to inform); Mickle v Salvation Army Grace Hospital (1998), 166 DLR (4th) 743, 83 ACWS (3d) 866 (Ont Ct J (Gen Div)) [Mickle cited to DLR] (patient relied on conclusions drawn from an inaccurate statement in a doctor's report).

(27) Cherry, supra note 3.

(28) Ibid at 491, citing Cherry (Guardian) v Borsman (1990), 75 DLR (4th) 668 at 670-71, 5 CCLT (2d) 243 (BCSC).

(29) Ibid at 670.

(30) Ibid at 671.

(31) Ibid at 679.

(32) Ibid at 674-75, 679.

(33) Arndt, supra note 4.

(34) Ibid at para 31.

(35) Ibid.

(36) Ibid at para 18.

(37) (2005), 75 OR (3d) 261, 138 ACWS (3d) 1126 (Sup Ct J) [O'Herlihy cited to OR].

(38) Ibid at paras 1, 9, 58.

(39) Ibid at para 1.

(40) (1997), 154 DLR (4th) 707, 75 ACWS (3d) 957 (BCSC) [Krangle cited to DLR], rev'd on other grounds 2000 BCCA 147, 184 DLR (4th) 251, rev'd on other grounds 2002 SCC 9, [2002] 1 SCR 205.

(41) Krangle, supra note 40 at paras 4, 5, 54.

(42) Mickle, supra note 26.

(43) See e.g., ibid at 746, 753, 764.

(44) Ibid at 758.

(45) Ibid.

(46) See e.g., Lacroix, supra note 12 at para 29; Mickle, supra note 26.

(47) See e.g., RH v Hunter (1996), 32 CCLT (2d) 44, 67 ACWS (3d) 1109 (Ont Ct J (Gen Div)) [Hunter cited to CCLT]. See also R Lee Akazaki, "'Wrongful Birth': An Ironic Name for a Cause of Action in the Law of Medical Malpractice" (1999) 22:1 Advocates' Q 102 at 106.

(48) Martel Building Ltd v Canada, 2000 SCC 60 at para 36, [2000] 2 SCR 860 [Martel Building].

(49) Peter Benson, "Should White v Jones Represent Canadian Law: A Return to First Principles" in Jason W Neyers, Erika Chamberlain & Stephen GA Pitel, eds, Emerging Issues In Tort Law (Oxford: Hart, 2007) 141 at 149 [emphasis omitted].

(50) See generally Weinrib, supra note 5 at 226.

(51) C.f. Kealey, supra note 1 at 63 (Lax J drew a similar conclusion regarding a claim for wrongful pregnancy). But see Cattanach v Melchior, [2003] HCA 38, 199 ALR 131 (a majority of the Australian High Court found that the mother's claim for the costs of raising her child in a wrongful pregnancy case should be determined under normal principles rather than principles of pure economic loss).

(52) See generally Weinrib, supra note 5 at 227-30.

(53) See Arndt, supra note 4 at paras 17-18.

(54) Ibid at para 9.

(55) Ibid at paras 4-6, citing Reibl v Hughes, [1980] 2 SCR 880 at 898-900, 114 DLR (3d) 1.

(56) Arndt, supra note 4 at paras 4-6.

(57) Ibid.

(58) See ibid at paras 17-18.

(59) Daniel W Whitney & Kenneth N Rosenbaum, "Recovery of Damages for Wrongful Birth" (2011) 32:2 J Legal Med 167 at 203.

(60) Paxton, supra note 11 at para 51.

(61) Michael B Kelly, "The Rightful Position in 'Wrongful Life' Actions" (1991) 42:2 Hastings LJ 505 at 550. Kelly refers to what he calls "genetic counselling torts" for the proposition that the wrongs involve misinformation. Genetic counselling torts are said to refer to both wrongful birth and wrongful life causes of action (ibid at 506, n 4).

(62) C.f. Kealey, supra note 1 at 63 (Lax J drew a similar conclusion regarding a claim for wrongful pregnancy).

(63) See e.g., Hercules Managements Ltd v Ernst & Young, [1997] 2 SCR 165 at para 31, 115 Man R (2d) 241 [Hercules], citing Ultramares Corp v Touche, 174 NE 441 at 444 (NY 1931) [Ultramares].

(64) [1992] 1 SCR 1021, 91 DLR (4th) 289 [Norsk cited to SCR].

(65) Ibid at 1152, citing Hedley Byrne & Co Ltd v Heller & Partners Ltd, [1964] AC 465, [1963] 2 All ER 575 (HL) [Hedley Byrne].

(66) See Norsk, supra note 64 at 1152-53. See e.g., Martel Building, supra note 48 at paras 38-39; Cooper v Hobart, 2001 SCC 79 at paras 31, 36, 41-42, [2001] 3 SCR 537; Edwards v Law Society of Upper Canada, 2001 SCC 80 at para 9, [2001] 3 SCR 562.

(67) Akazaki, supra note 47 at 104, citing Mickle, supra note 26.

(68) See e.g., Bevilacqua v Altenkirk, 2004 BCSC 945 at paras 1-2, 30, 242 DLR (4th) 338 [Bevilacqua] (the plaintiff claimed negligent misrepresentation against the doctor for wrongful pregnancy, but the doctor admitted liability, so Groberman J did not consider the application of negligent misrepresentation to wrongful pregnancy); Lininger, supra note 9 (the Supreme Court of Colorado held that the plaintiff could bring a negligent misrepresentation claim for what the Court called "wrongful birth").

(69) The remainder of the article will refer to reliance-based wrongful birth as wrongful birth.

(70) See e.g., Hercules, supra note 63, citing Ultramares, supra note 63.

(71) Queen v Cognos Inc, [1993] 1 SCR 87 at 110, 99 DLR (4th) 626 [Cognos].

(72) See ter Neuzen v Korn, [1995] 3 SCR 674 at para 33, 127 DLR (4th) 577 [ter Neuzen]. See also Paxton, supra note 11 at para 1.

(73) JK Mason, The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction (New York: Cambridge University Press, 2007) at 79.

(74) Mickle, supra note 26 at 148.

(75) [1978] AC 728, [1977] 2 All ER 492 (HL).

(76) [1984] 2 SCR 2, 10 DLR (4th) 641 [cited to SCR].

(77) Ibid at 10-11.

(78) Hercules, supra note 63.

(79) Ibid at paras 22-24.

(80) Ibid at para 24.

(81) See Malette v Shulman (1990), 72 OR (2d) 417 at 423-24, 67 DLR (4th) 321 (CA).

(82) See Samara Polansky, "Overcoming the Obstacles: A Collaborative Approach to Informed Consent in Prenatal Genetic Screening" (2006) 14 Health LJ 21 at 41.

(83) Hercules, supra note 63 at para 24.

(84) Ibid at para 43, citing Bruce Feldthusen, Economic Negligence: The Recovery of Pure Economic Loss, 3d ed (Scarborough: Carswell, 1994) at 62-63.

(85) Hercules, supra note 63 at paras 36-37.

(86) See Philip H Osborne, The Law of Torts, 4th ed (Toronto: Irwin Law, 2011) at 182-83.

(87) See e.g., Hercules, supra note 63 at paras 33-34 (the effect of indeterminate liability was suggested to have an adverse impact on the accounting industry).

(88) Allen M Linden & Bruce Feldthusen, Halsbury's Laws of Canada: Negligence (2012 Reissue), 1st ed (Markham: LexisNexis Canada, 2012) at 357, HNE-114, citing Glanzer v Shepard, 135 NE 275 (NY 1922). Accord Hercules, supra note 63 at paras 37-38, 46, 56.

(89) Ibid at para 46.

(90) C.f. ibid at paras 51-57 (although the plaintiff relied on negligently audited financial statements prepared by the defendant, the purpose of the audited financial statements was not to assist individuals in making personal investment decisions, but rather to allow shareholders to make decisions regarding the administration and management of the corporation).

(91) But see Krangle, supra note 40 at para 53 (the Court found that the doctor had not sufficiently notified the mother that he would not assume responsibility for her prenatal care, and that he implicitly assumed this responsibility by continuing to provide prenatal medical services).

(92) Cognos, supra note 71.

(93) Ibid.

(94) See e.g., Arndt, supra note 4; O'Herlihy, supra note 37; Krangle, supra note 40.

(95) Bruce Feldthusen, Economic Negligence: The Recovery of Pure Economic Loss, 6th ed (Toronto: Carswell, 2012) at 86-87. See also Fletcher v Manitoba Public Insurance Co, [1990] 3 SCR 191 at 211, 71 Man R (2d) 81, quoting Banque Financiere de la Cite SA v Westgate Insurance Co Ltd, [1990] 1 QB 665, [1989] 2 All ER 952 (CA) [cited to All ER] ("a mere failure to speak" can "give rise to liability in negligence under Hedley Byrne principles...but subject to the all-important proviso that there has been on the facts a voluntary assumption of responsibility in the relevant sense and reliance on that assumption" at 1007).

(96) See e.g., Olsen v Poirier (1978), 21 OR (2d) 642, 91 DLR (3d) 123 (SC (H Ct J)) (a real estate agent was held liable for failing to inform the purchaser of the correct rules applicable to the real estate transaction).

(97) ter Neuzen, supra note 72.

(98) Ibid, citing Wilson v Swanson, [1956] SCR 804 at 817, 5 DLR (2d) 113; Lapointe v Hopital Le Gardeur, [1992] 1 SCR 351 at 361, 90 DLR (4th) 7; McCormick v Marcotte (1971), [1972] SCR 18 at 21, 20 DLR (3d) 345.

(99) See e.g., Mickle, supra note 26 at 754.

(100) Cognos, supra note 71 at 121.

(101) See e.g., ter Neuzen, supra note 72.

(102) See e.g., Linden & Feldthusen, supra note 88 at 365, HNE-119.

(103) (1976), [1977] 1 SCR 466, 72 DLR (3d) 68 [Bamford].

(104) Hercules, supra note 63 at paras 51-57.

(105) LaSalle Business Credit v Genfast Manufacturing Co (2008), 45 CBR (5th) 55 at para 32, 164 ACWS (3d) 165 (Ont Sup Ct J).

(106) (1976), [1977] 1 SCR 51, 65 DLR (3d) 1 [cited to SCR].

(107) Ibid at 68.

(108) Burstein v Crisp Devine Ltd, [1973] 3 OR 342, 36 DLR (3d) 674 (H Ct J). See also Norris v Sibberas (1989), [1990] VR 161, [1990] VicRp 15 (SC (App Div)) (the Court found that because the plaintiff relied on an accountant's advice with respect to the financial viability of a business, it was not reasonable to conclude that the plaintiff relied on the real estate agent's claims that the business was a "once in a lifetime opportunity" and would become "a gold mine").

(109) Rainbow Industrial Caterers Ltd v Canadian National Railway Co, [1991] 3 SCR 3 at 15-16, 84 DLR (4th) 291 [emphasis in original].

(110) Hodgkinson v Simms, [1994] 3 SCR 377 at 442, 117 DLR (4th) 161.

(111) Feldthusen, supra note 95 at 122-23.

(112) Wrongful birth cases can involve non-pecuniary damages; however, the merits and justification of non-pecuniary damages are beyond the scope of this article. For a discussion of the treatment of damages in cases of wrongful birth c.f. Bevilacqua, supra note 68 at para 66, n 1 (although the case involved a wrongful pregnancy claim, the damages analysis is applicable to wrongful birth); Kealey, supra note 1 (damages are discussed in the analogous context of wrongful pregnancy).

(113) John G Fleming, The Law of Torts, 9th ed (Sydney: Law Book Company, 1998) at 257.

(114) Internationally and domestically, the acceptance of allowing the benefits of childbirth to be offsetting varies. For a summary of the jurisprudence on the "No Recovery", "Total Recovery", "Offset/ Benefits", and "Limited Damages" approaches see Bevilacqua, supra note 68 at paras 82-172.

(115) Hunter, supra note 47.

(116) See ibid at paras 1, 8-22.

(117) (1986), 29 DLR (4th) 534, 37 CCLT 106 (BCSC) [cited to DLR].

(118) Ibid at 543-44.

(119) See e.g., Bamford, supra note 103; Hedley Byrne, supra note 65; Hercules, supra note 63.

(120) Hunter, supra note 47 at para 12.

(121) See generally Krangle, supra note 40.

GORDON T HOUSEMAN, B.A. (Hons.) (Queen's), J.D. (Toronto).
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Title Annotation:Canada
Author:Houseman, Gordon T.
Publication:University of Toronto Faculty of Law Review
Date:Jan 1, 2013
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