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Torts - Negligence - Duty of Care

Childs v. Desormeaux (SCC, 2006)

In this case the Supreme Court of Canada restated the well-known Anns v Merton principles applicable to determining when a duty of care in negligence exists between parties:
11 In Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Lord Wilberforce proposed a two-part test for determining whether a duty of care arises. The first stage focuses on the relationship between the plaintiff and the defendant, and asks whether it is close or “proximate” enough to give rise to a duty of care (p. 742). The second stage asks whether there are countervailing policy considerations that negative the duty of care. The two-stage approach of Anns was adopted by this Court in Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, at pp. 10-11, and recast as follows:
(1) is there “a sufficiently close relationship between the parties” or “proximity” to justify imposition of a duty and, if so,

(2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise?
12 In Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69 (CanLII), the Court affirmed the Anns test and spoke, per Iacobucci J., of three requirements: reasonable foreseeability; sufficient proximity; and the absence of overriding policy considerations which negate a prima facie duty established by foreseeability and proximity: para. 52. Some cases speak of foreseeability being an element of proximity where “proximity” is used in the sense of establishing a relationship sufficient to give rise to a duty of care: see, e.g., Kamloops. Odhavji, by contrast, sees foreseeability and proximity as separate elements at the first stage; “proximity” is here used in the narrower sense of features of the relationship other than foreseeability. There is no suggestion that Odhavji was intended to change the Anns test; rather, it merely clarified that proximity will not always be satisfied by reasonable foreseeability. What is clear is that at stage one, foreseeability and factors going to the relationship between the parties must be considered with a view to determining whether a prima facie duty of care arises. At stage two, the issue is whether this duty is negated by other, broader policy considerations.

13 The plaintiff bears the ultimate legal burden of establishing a valid cause of action, and hence a duty of care: Odhavji. However, once the plaintiff establishes a prima facie duty of care, the evidentiary burden of showing countervailing policy considerations shifts to the defendant, following the general rule that the party asserting a point should be required to establish it.


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