1. Introduction to the Duty of Care in Canada Updated PDF

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Introduction Duty of care...

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DUTY OF CARE Development of the Duty of Care in the UK and Canada Introduction: Comes out of writ of trespass on the case which provided a remedy in cases of indirectly caused harm. Trespass by force and arms was wedded to directness. However the former could be too open-ended. Law devised limiting criteria. Could only recover through indirect harm if the defendant acted intentionally or negligently. Since negligent wrongdoing became more prevalent, it became more used. Courts in 19 th century took a formalist approach: negligence will only be used in areas where people should be held accountable. You had to fit the situation within a category. Donoghue v. Stevenson [1932] A.C. 562 (H.L.) Facts: Assumed that defendant manufactured a bottle of ginger beer which a person bought for the plaintiff. (No contract between plaintiff and defendant.) A decomposed snail comes out the beer and made the plaintiff sick. (Plaintiff claimed negligence – but for that I would not have been sick.) (Defendant argues that it had no duty of care in this situation.) (Immediate problem for the plaintiff is that there is no precedent – Lord Buckmaster, in dissent, asserts this.) Issue: In order for a negligence action to succeed, did the defendant owe a duty to the plaintiff? Held: Majority position – this is a gap in the law for an injured consumer to have no grounds for remedy in tort. Look at all the cases as a connecting group reveals an underlying principle (similar to Motherwell v. Motherwell, Wilkinson v. Downton both use the same legal approach). This is where we get proximity. Duty should be recognized because the facts comply with the general principle – people have duties to not cause their neighbours harm. Who is my neighbour in law?  People who are so affected as should be reasonably foreseeable as being harmed (or proximity).  Founding principle of negligence law is being attributed to the neighbour principle. This is variously talked about in reasonable foreseeability. Nobody had thought to differentiate between reasonable foreseeability and proximity. Reasonable foreseeability: How did Atkin come to the conclusion that there was a duty?  The bottle was opaque and you would not have any chance to discard the bottle until you opened it and drank it. This fact along with reasonable foreseeability lead the court to accept that there could be harm. End users should be reasonably foreseeable. Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.) Lord Wilberforce: First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.

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Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. Using Anns: 1. Is it reasonable foreseeability that somebody would have been harmed by impugned activity? 2. Is there a policy reason that it would be inappropriate for a remedy to be awarded? Policy argument is that you are looking over the shoulder of the professional. This is an inappropriate pressure. Note: Lord Wilberforce sets out an approach for analyzing existing categories of negligence and for recognizing new categories in novel situations. House of Lords decisively overruled it in Murphy v. Brentwood District Council, [1991] 1 A.C. 338. There was a concern about the overreach of tort law. Similar arguments to those Lord Buckmaster raised in 1932 in Donoghue. Anns was criticized as leading to capricious results, providing unworkable tests of liability, unduly expanding the scope of liability, and lacking any foundation in established principle. The leading case in England is now Caparo Industries plc v. Dickman, [1990] 2 A.C. 605 (H.L.). Caparo Industries plc v. Dickman [1990] 2 A.C. 605 (HL) Facts: C holds shares in Company 1. Dickman audited Company 1’s books and stated that the accounts gave a true and fair representation of the financial position. Dickman was wrong. Caparo successfully launched a takeover bid of Company 1 relying in part on Dickman’s audit. Caparo sues Dickman in negligence (duty of care in auditing accounts). Issue: Is Dickman liable to Caparo? Held: Touche Ross & Co owed a duty to Caparo in its capacity as a shareholder but not in its capacity as a corporate raider. Damages suffered (i.e. paying too much for Fidelity) were not subject to a duty of care. Lord Oliver: ‘. . . the purpose for which the auditors’ certificate is made and published is that of providing those entitled to receive the report with information to enable them to exercise in conjunction with those powers which their respective proprietary interests confer on them and not for the purposes of individual speculation with a view to profit.’ Note: Test = 1. reasonably foreseeable; 2. proximity and; 3. fair/just/reasonable “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. . . .” Anns Test in Canada Kamloops (City) v. Nielsen (1984), 10 D.L.R. (4th) 641 (S.C.C.)

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(1) [I]s there a sufficiently close relationship between the parties . . . so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to [the plaintiff]? 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? Change in test with Cooper v. Hobart Cooper v. Hobart [2001] 3 S.C.R. 537 Facts: Plaintiff lost money from investment by a mortgage broker. Plaintiff sued the regulator of mortgage brokers. (Argument: the registrar was negligent and that this negligence caused a loss.) Issue: Did the Registrar of Mortgage Brokers owe a duty of care? Held: No, the Registrar did not owe a duty of care. Anns test retained: “In our view, Anns continues to provide a useful framework in which to approach the question of whether a duty of care should be imposed in a new situation.” Significance of Cooper: 1. No impact on cases of negligence where a duty of care has already been established. 2. Cooper affects instances where there is no established duty of care. The reason appears to be the Court is seeking to curb the expansion of duties of care. Test for a duty of care in a novel fact situation: 1a) reasonable foreseeability; 1b) proximity, which includes questions of public policy.  This is a specific policy question and the former policy is a general question. Best way to determine the policy is to look at established categories of negligence, thereby bringing in the old principles. 2. The second question is another policy question focused on policy in general. Establishing a duty of care (established category or novel duty of care) (a) As a preliminary matter, is the alleged duty of care within an established category or analogous to an established category?  If so, then it will not generally be necessary to proceed through the Anns/Cooper analysis. Proximity is established, and overriding policy considerations will rarely arise. Thus, a duty of care exists. As mentioned in the previous chapter, in cases involving established categories, the duty of care frequently goes unmentioned. (b) If the case alleges a novel duty of care, was the harm reasonably foreseeable?  This is typically not a difficult burden for the plaintiff to meet. However, as discussed in the remainder of this chapter, a duty of care may sometimes be rejected because the harm or the plaintiff was not reasonably foreseeable.

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(c) Even if the harm was foreseeable, was there a sufficient relationship of proximity between the parties to make it just and fair to impose a duty of care on the defendant?  At this stage, the court will consider policy considerations arising from the relationship between the parties.  Factors to consider may include expectations, representations and reliance; the types of interests involved (physical, economic, emotional, etc.); and any statutory or contractual framework.  The courts continue to provide guidance on this issue as novel cases arise. (d) If there was foreseeable harm and a sufficient relationship of proximity, a prima facie duty of care exists.  Then, according to Childs v. Desormeaux, [2006] 1 S.C.R.643, the evidentiary burden shifts to the defendant to raise any residual policy considerations that might negative or limit the scope of the duty of care.  These residual policy considerations pertain to the decision’s effects on the legal system or society more generally.  For example, is there an alternative remedy available, will a duty of care give rise to indeterminate liability, or does the case involve core policy decisions of the government that should be immune from negligence liability? Presumably, the list of residual policy considerations is only limited by lawyers’ imaginations.  Nevertheless, according to Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] SCC 31, given that these policy considerations may deny compensation to an otherwise deserving plaintiff, they should not determine the matter if they are merely speculative. Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] SCC 31 Facts: The plaintiff was wrongly convicted after an allegedly negligent police investigation. The defendant raised numerous arguments at the second stage of the Anns/Cooper test, claiming that imposing a duty of care would interfere with the exercise of discretion during investigations, would have a chilling effect on police behaviour, and would result in a flood of claims by those accused of crimes. Held: The SCC recognised the tort of negligent investigation pertaining to police officers. Courts have to consider the elements involved in a reasonable, prudent investigation where the standard was that of the “reasonable police officer.”[67]-[73]. The majority of the court considered and rejected each of these residual policy concerns, and cautioned against rejecting a duty of care based on mere speculation. Moreover, the majority also considered the positive implications of imposing a duty of care, particularly that it would raise the standards of police investigations. The decision in Hill suggests that defendants will need some evidence to support their claims that imposing a duty of care would have deleterious effects. Plaintiffs may raise residual policy considerations that militate in favour of imposing a duty of care.

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Elements of establishing a duty of care applied Reasonable foreseeability Moule v. N.B. Elec. Power Comm (1960), 24 D.L.R. (2d) 305 (S.C.C.) Facts: Trees around the wires were cleared on the different sides of the wire. Someone, unknown, had placed a plank between some of the trees (was not plaintiff or defendant). A 10-year old boy got near enough to the wires that he became electrocuted. The claim is that this is the kind of person who would be directly and closely affected. Held: No duty is owed to this person. Since trees were trimmed there was no reasonable foreseeability. Court chooses to look at this case in terms of duty. Rankin’s Garage & Sales v. J.J., 2018 SCC 19 Facts: J and his friend C, both then minors, were at the house of C’s mother drinking alcohol and smoking marijuana. Sometime after midnight, they left the house to walk around town, with the intention of stealing valuables from unlocked cars. Eventually they made their way to R (a commercial car garage) located near the main intersection. The garage property was not secured, and the boys began walking around the lot checking for unlocked cars. C found an unlocked car parked behind the garage. He opened it and found its keys in the ashtray. Though he did not have a driver’s license and had never driven a car on the road before, C decided to steal the car so that he could go and pick up a friend in a nearby town. C told J to “get in”, which he did. C drove the car out of the garage and on the highway where the car crashed. J suffered a catastrophic brain injury. Through his litigation guardian, J sued R, C and C’s mother for negligence. Issues: “A. Was the risk of personal injury reasonably foreseeable in this case? B. Did the commercial garage have a positive duty to guard against the risk of theft by minors? C. Could illegal conduct sever any proximity between the parties or negate a prima facie duty of care?” [15] Held: Rankin not liable. Majority: Allowing the appeal. J did not provide sufficient evidence to support the establishment of a duty of care owed by R. J has not met the burden of establishing a prima facie duty of care owed by R. Reasonable foreseeability could not be established on this record. A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable. ‘Here, there was no evidence to support the inference that the stolen vehicle might be operated in an unsafe manner, causing injury. … A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable. [2] ‘it is not enough to determine simply whether the theft of the vehicle was reasonably foreseeable. The claim is not brought by the owner of the car for

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the loss of the property interest in the car; if that were the case, a risk of theft in general would suffice. Characterizing the nature of the risk-taking as the risk of theft does not illuminate why the impugned act is wrongful in this case since creating a risk of theft would not necessarily expose the plaintiff to a risk of physical injury. … The proper question to be asked in this context is whether the type of harm suffered personal injury was reasonably foreseeable to someone in the position of the defendant when considering the security of the vehicles stored at the garage.’ [26] (Would a car owner be liable for the same thing if car stolen from driveway and injury caused to one of the thieves?) ‘I cannot agree with my colleague’s position that this case is captured by a broad category defined simply as foreseeable physical injury: see Cooper; Childs. Such an approach would be contrary to recent guidance from this Court that categories should be framed narrowly (see Deloitte, at para. 28); indeed, even in Deloitte, the “broad” categories discussed were narrower than foreseeable physical injury’. [28] ‘I accept that the evidence could establish, as the jury found, that the defendant ought to have known of the risk of theft. However, it does not automatically flow from evidence of the risk of theft in general that a garage owner should have considered the risk of physical injury. I do not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen. This would extend tort liability too far. Physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner.’ [34] (Would stolen cars be more likely to carry the risk discussed here?) Criticising the CA’s approach: ‘However, the risk of theft in general does not automatically include the risk of theft by minors. I cannot agree with my colleague’s suggestion that because minors are reckless, “minors are no less likely to steal a car than any other individual” and therefore, theft by a minor is reasonably foreseeable (para. 83). The inferential chain of reasoning is too weak it is not enough to say that it is possible that unsupervised minors would be roaming the lot looking for unlocked vehicles.’ [45] ‘The fact that something is possible does not mean that it is reasonably foreseeable. Obviously, any harm that has occurred was by definition possible. Thus, for harm to be reasonably foreseeable, a higher threshold than mere possibility must be met: Childs, at para. 29. Some evidentiary basis is required before a court can conclude that the risk of theft includes the risk of theft by minors. Otherwise theft by a minor would always be foreseeable even without any evidence to suggest that this risk was more than a mere possibility. This would fundamentally change tort law and could result in a significant expansion of liability.’ [46] Bringing remoteness into foreseeability?: ‘Moreover, this testimony only suggests that Mr. Rankin thought that theft, rather than personal injury, was foreseeable.’[54] Dissent: This case does not require the Court to undertake a full analysis to establish a novel duty of care. It involves the application of a category of relationships that has long been recognized as imposing a duty of care —

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namely, where the defendant’s act foreseeably causes physical harm to the plaintiff. Physical injury to J was a reasonably foreseeable consequence of R’s negligence. ‘First, this case does not require this Court to undertake a full Anns/Cooper analysis to establish a novel duty of care. Instead, it involves the unremarkable application of a category of relationships that has long been recognized as imposing a duty of care namely, “where the defendant’s act foreseeably causes physical harm to the plaintiff”’ [69] ‘At Canadian law, a duty of care is established through the application of the Anns/Cooper framework. Divided into two stages, the framework asks: (1) Does a prima facie duty of care exist between the parties; and (2) if a prima facie duty of care does exist, are there residual policy concerns that negate that duty? At the first stage, the plaintiff bears the burden of proving that “the circumstances disclose reasonably foreseeable harm and proximity”. As a matter of precedent, where a case falls within, or is analogous to, a category of relationships in which a duty of care has previously been recognized, the proximity requirement will be satisfied. And, assuming that the plaintiff has proven that injury to him or her was a reasonably foreseeable consequence of the defendant’s negligence, a duty of care will be properly found without the need to consider the second stage of the Anns/Cooper framework. Where no such previously recognized duty has been found to exist, a full Anns/Cooper analysis must be completed to determine whether a novel duty of care should be recognized.’ [72] While accurate (the test being where the defendant’s act foreseeably causes physical harm to the plaintiff), is this test not overly broad? And so, the dissent is correct, but the majority is endeavouring to limit the application of the test (through imprecise language). ‘Where a plaintiff has already sustained injury, it is rare for a court to find that a duty of care is not established for a lack of reasonably foreseeable harm.’ [78] This seems to be the very point that the majority is trying to limit. ‘Imposition of a duty of care, rather, was conditioned in this case only upon J. showing that physical injury to him was reasonably foreseeable under any circumstances flowing from Rankin’s negligence.’ [84] Is this going against the tide on duties of care?

Foreseeable Plaintiff Palsgraff v. Long Island Ry. Co. 248 N.Y. 339 (C.A. 1928) Facts: Employee tried to help somebody onto a train that was departing. The person dropped their suitcase that contained fireworks, which were ignited.

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Cardozo CJ: Is it reasonably foreseeable that this person would be inj...