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Torts - Negligence - Duty of Care (5). Knisley v. Canada (Attorney General)
In Knisley v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal allows an appeal, here from an unusual 'conditional' class action certification.
Here the court considers the 'duty of care' element in a negligence claim:[45] Accepting that characterization of the duty of care, the respondent must satisfy the Anns/Cooper test. That test has two stages.[3] The first stage in turn involves two components: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of the test, that tort liability should not be recognized? In the second stage, residual policy considerations fall to be considered. These are concerned with the effect of recognizing a duty of care on other legal obligations, the legal system, and society more generally.
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[49] In considering the first stage of the Anns/Cooper test, I am also mindful of the observations made in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45. In that decision, McLachlin C.J. said that determining, at the preliminary stage of an action, that sufficient proximity could not be made out was a determination that should be reached with great care. Rather, she said that the approach to that determination must be generous and “err on the side of permitting a novel but arguable claim to proceed to trial”: at para. 21. McLachlin C.J. continued in that vein later in her reasons where she said, in words particularly apt to this case, at para. 47:On the other, where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis. [50] In terms of the second stage of the test, I do not see any residual policy considerations that would argue against a finding of proximity. Indeed, to the contrary, this seems to be precisely the type of case where policy considerations would favour a finding of proximity. If a government (federal, provincial or municipal) chooses to establish a benefit system directed at a specific group of individuals, who may be enticed by that system to agree to join a government mandated operation, whether it be the CAF (as in this case) or the Royal Canadian Mounted Police or other similar entities, then policy considerations would appear to favour the conclusion that the government will administer that system in the best interests of those to whom it applies, and be held accountable if it does not. . Huether v. Sharpe ['duty to monitor']
In Huether v. Sharpe (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where the lower "motion judge dismissed the Township’s motion for summary judgement, finding that the Township’s negligence was ongoing and continuous and, therefore, the ultimate limitation period had not yet expired by virtue of s. 15(6)(a) of the Act".
Here the court considers the negligence concept of duty of care, here in the form of 'duty to monitor':(2) The motion judge erred in finding that the Township had a “duty to monitor” open building permit files without undertaking a duty of care analysis
[57] While the above finding is sufficient to dispose of this appeal, in order to provide guidance to future courts who might be called upon to consider a “duty to monitor” open building permits, it is appropriate to clarify the nature of the analysis that would be required before recognizing such a duty.
[58] The duty to monitor recognized by the motion judge was novel. Previous appellate decisions had recognized a duty of care on a municipality to conduct inspections of buildings under construction in a non-negligent manner: see e.g., Rothfield v. Manolakos, 1989 CanLII 17 (SCC), [1989] 2 S.C.R. 1259, at pp. 1266-67; Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, 183 D.L.R. (4th) 193, at para. 25. However, the basis of this duty was that “having made the policy decision to inspect, the municipality was bound to implement this decision with the care that would be expected of an ordinary, reasonable and prudent municipality in the same circumstances”: Breen, at para. 42.
[59] Although the motion judge in this case did not define the parameters of the “duty to monitor”, it clearly went beyond the existing common law duty regarding the conduct of inspections. According to the motion judge, the duty to monitor required some form of “regular surveillance” or continuous monitoring of building permit files until such time as the building is substantially complete, the conditions for occupancy are met, and the building permit is closed.
[60] Before recognizing such a novel duty, the court was required to undertake a duty of care analysis, in accordance with the Anns/Cooper framework: see Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Cooper v Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at paras. 30-31. It is well-established that the analysis proceeds in two stages. The first stage requires the recognition of a prima facie duty of care through the application of a proximity and foreseeability analysis. The second stage asks whether there are residual policy reasons for why a duty of care should not be recognized in the circumstances of the case: Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410, 156 O.R. (3d) 10, at para. 27, leave to appeal refused, [2021] S.C.C.A. No. 302.
[61] I make no comment on whether it would or would not be appropriate to recognize a duty to monitor in a future case, but merely observe that the motion judge erred by recognizing this novel duty without regard to this well-established legal framework. . McMillan v. Canada
In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".
Here the court considers a doctrine that no negligence duty of care is owed to employees by the employer:(1) Did the Federal Court Err in Law in Finding that it is not Plain and Obvious that no Private Law Duty of Care is Owed to Kelowna TCEs Hired Pursuant to Contracts of Employment?
[204] The Crown asserts that even if there were grounds for the Federal Court to have assumed jurisdiction over the claims of the Kelowna TCEs during the class period, the Court nevertheless erred in law in refusing to strike Mr. McMillan’s pre-March 31, 2005 claims. According to the Crown, it is plain and obvious that Mr. McMillan does not have a reasonable cause of action against the RCMP in negligence.
[205] There is no dispute about the fact that the RCMP employed Mr. McMillan and the other Kelowna TCEs through individual contracts of employment. The Crown submits that there are numerous appellate authorities (including decisions of this Court) holding that employers (including the RCMP) do not owe a private law duty of care to employees who are engaged through contracts of employment. In the absence of a duty of care, it follows that these employees do not have a cause of action in negligence against their employer for workplace harassment.
[206] This does not mean that such employees are out of luck: relief for workplace harassment may be available to these individuals through contract and employment law actions (such as those for wrongful or constructive dismissal), or through other torts (such as intentional infliction of mental suffering), but not through claims in negligence.
[207] In support of this contention, the Crown cites the decision of the Court of Appeal for Ontario in Piresferreira v. Ayotte, 2010 ONCA 384, where the Court declined to recognize a duty of care owed by an employer to a former employee. Noting that no Canadian appellate court had recognized the existence of such a duty, the Court found that it was neither necessary nor desirable to extend negligence principles to the context of workplace harassment: at paras. 61−62. See also Merrifield v. Canada (Attorney General), 2019 ONCA 205 at para. 43, where the Court of Appeal for Ontario came to a similar conclusion.
[208] In finding that it was not necessary to extend the law in this regard, the Court found that sufficient relief was already available to aggrieved employees through the laws of contract and employment, and through the tort of intentional infliction of mental suffering. The Court found that extending negligence principles into the workplace was also not desirable, as it would mark "“a considerable intrusion by the courts into the workplace, [that] has a real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately”": Piresferreira, above at para. 62.
[209] Referring, by analogy, to the Supreme Court of Canada’s decision in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, [1997] S.C.J. No. 94, the Court of Appeal for Ontario concluded in Piresferreira that the recognition of a negligence-based tort in the employment context is a matter better left to the legislature: at paras. 56−57.
[210] This Court came to a similar conclusion in Greenwood, holding that a claim in negligence for workplace harassment—whether brought on an individual or a systemic basis—is liable to being struck where it is brought by or on behalf of individuals whose relationship with the RCMP is governed by written or unwritten contracts of employment: above at para. 155.
[211] The Federal Court was well aware of this jurisprudence, discussing it at paragraphs 70 to 75 of its reasons. While recognizing that these cases have found that no common law duty of care is owed to employees whose relationship with their employer is governed by employment contracts, the Federal Court nevertheless found that the appellate authority was divided "“on the question of tortious negligence in the context of workplace harassment”": Federal Court reasons at para. 72.
[212] In making this finding, the Federal Court stated that the British Columbia Court of Appeal had come to the opposite conclusion in Sulz v. Minister of Public Safety and Solicitor General, 2006 BCCA 582. There, the Court upheld an award in tort for workplace harassment suffered by an RCMP member at the hands of her superior officer.
[213] An internal investigation had confirmed that sexual harassment had taken place, but the RCMP did not offer any compensation to Ms. Sulz, and it took no disciplinary action against the superior officer as he had retired. The trial judge found the Province of British Columbia to be vicariously liable in negligence for the actions of the superior officer, under the terms of the policing agreements between the federal government and the province. This finding was upheld on appeal.
[214] I do not agree with the Federal Court’s characterization of the British Columbia Court of Appeal’s decision in Sulz. That Court did not address the question raised by this case: that is, whether a common law duty of care can be owed to employees whose relationships with their employers are governed by employment contracts. It is not surprising that the British Columbia Court of Appeal did not engage with this question, as it did not arise in Ms. Sulz’s case.
[215] This is because Ms. Sulz was not an RCMP employee—she was a member of the force, and RCMP members are not employed pursuant to employment contracts: they are statutory office holders, not employees: Greenwood, above at para.156, citing Davidson, above at para. 37.
[216] The result of this is that the Piresferreira line of authority had no application to people in Ms. Sulz’s situation: Greenwood, above at para. 156. The decision of the British Columbia Court of Appeal in Sulz thus does not represent a conflict in the appellate jurisprudence insofar as RCMP employees are concerned.
[217] This Court did find there to be conflicting appellate authority on the question of whether RCMP members may recover damages in tort for workplace harassment: Greenwood, above at para. 159. However, when it came to claims in negligence for workplace harassment—on either an individual or systemic basis—brought by individuals whose relationship with the RCMP were governed by contracts of employment, this Court was clear: such claims are liable to being struck: Greenwood¸ above at para. 155.
[218] All of that said, however, the door has not been firmly and forever shut on the question of whether a common law duty of care could ever be owed to employees whose relationships with their employer are governed by employment contracts. Indeed, the Court of Appeal for Ontario concluded its analysis in Merrifield, above, by stating that it "“[did] not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts”": at para. 53. The Court was simply not persuaded that a compelling reason existed to recognize a new tort of harassment in that case.
[219] There are also decisions, albeit decisions of the Federal Court, that suggest that employees may be able to recover damages in tort for workplace harassment in some circumstances.
[220] For example, the Federal Court refused to strike a statement of claim brought by female employees of the Correctional Services Canada, in which they alleged that their employer was negligent in its response to the gender-based harassment, discrimination, and sexual assault they experienced in the workplace: Hudson, above at paras. 107−116.
[221] In refusing to strike the claim, the Federal Court observed that it should be "“circumspect”" in finding at a preliminary stage of the proceedings that the employer did not owe a duty of care to the plaintiffs and other members of the proposed class: Hudson, above at para. 116.
[222] In the Merlo case discussed earlier, a class proceeding was brought on behalf of regular RCMP members, civilian members and public service employees for gender-based workplace bullying, discrimination, and harassment. Amongst other causes of action asserted, the claim was framed in negligence.
[223] In reasons reported as 2017 FC 51, the Merlo claim was certified as a class proceeding by the Federal Court. It is true that the Crown consented to the issuance of the certification order in Merlo for the purpose of settlement, which potentially reduces the precedential value of the Court’s decision, but it cannot be completely ignored: Greenwood, above at para. 160.
[224] Indeed, even if the certification order in Merlo went on consent, the Federal Court nevertheless had to be satisfied that the claim disclosed a reasonable cause of action before it could approve the settlement. The same argument may be made with respect to the certification order in Tiller.
[225] Other decisions have been to a similar effect. For example, in Bouchard v. Attorney General of Canada, 2018 QCCS 1486, the Superior Court of Québec authorized a class action brought on behalf of former employees of the Government of Canada, for claims, including claims in negligence, resulting from the problems encountered with the implementation of the Phoenix pay system.
[226] Moreover, as was noted earlier, courts have recognized that the law is not static, and that judges must err on the side of permitting novel, but arguable claims to proceed to trial: R. v. Imperial Tobacco, above at paras. 19−25; Mohr, above at para. 48.
[227] Given this, and recognizing that the threshold that a plaintiff has to meet to establish that a claim discloses a reasonable cause of action is a low one, the Crown has not persuaded me that the Federal Court erred in finding that it was not plain and obvious that a negligence-based claim for workplace harassment brought by employees against the Crown was bound to fail.
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