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Torts - Negligence - Firearms. Sienna v. Duckett
In Sienna v. Duckett (Ont CA, 2025) the Ontario Court of Appeal allowed a plaintiff's appeal, this brought against a successful defendant's R21.01(1)(b) ['no reasonable cause of action'] motion where the plaintiff alleged that the defendant "negligently failed to properly administer regulatory oversight in issuing firearms licences and owed them a private law duty of care by virtue of the respondent’s control over the issuance of firearms licences".
Here the court considered negligence proximity, here in a government defendant (firearms regulation) context:[15] Because the appellants’ claim is against a government actor and said to arise from a statutory duty, the law regarding when a public law duty may give rise to a private law duty is also relevant. Generally, legislation or other types of regulation are enacted to further some public good – public health, public safety, fair markets, to name a few. The fact that government has chosen to act for the public good does not necessarily indicate an intention to create private law duties. Foreseeability alone is not sufficient to give rise to a duty of care. In the words of Chief Justice McLachlin in Imperial Tobacco, at para. 41: “Foreseeability must be grounded in a relationship of sufficient closeness, or proximity, to make it just and reasonable to impose an obligation on one party to take reasonable care not to injure the other.”
[16] The jurisprudence contemplates three categories of circumstances where sufficient proximity will exist that a public law duty may give rise to a private law duty of care on a government actor: (1) where the alleged private law duty of care arises explicitly or implicitly from the statutory scheme; (2) where there are specific interactions between the government and the plaintiff that create a relationship sufficient to establish the proximity required for a duty of care that is not negated by the statute; and (3) where a combination of interactions and statutory duties establishes sufficient proximity to give rise to a private law duty of care: Imperial Tobacco, at paras. 43-47; Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161, at paras. 75-87.
c. Proximity analysis
[17] The appellants rely on the first and third proximity categories discussed in Imperial Tobacco and Taylor.
[18] On the first category, the motion judge made no error in concluding that a private law duty could not arise explicitly or implicitly from the legislation alone.
[19] The appellants rely on two sections of the Firearms Act, S.C. 1995, c. 39, to ground their argument that a private law duty arises explicitly or implicitly from the legislation:5 (1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a crossbow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or a cartridge magazine.
(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person
....
(b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person;
....
55 (2) Without restricting the scope of the inquiries that may be made with respect to an application for a licence, a chief firearms officer may conduct an investigation of the applicant, which may consist of interviews with neighbours, community workers, social workers, individuals who work with or live with the applicant, spouse or common-law partner, former spouse or former common-law partner, dependants or whomever in the opinion of the chief firearms officer may provide information pertaining to whether the applicant is eligible under section 5 to hold a licence. [20] In particular, the appellants focus on the language “that or any other person” in s. 5(1) and in the broad power in s. 55(2) to make inquiries regarding whether an applicant is eligible for a licence, including of neighbours.
[21] In my view, these provisions cannot reasonably be read as creating a private law duty. The provisions empower the Chief Firearms Officer in his public duty regarding licensing of individuals who wish to possess and use firearms. The language of the Firearms Act creates public duties in relation to the regulation of firearms. But there is nothing in the statutory language to support converting the Chief Firearms Officer’s licensing and investigative powers, to be exercised in the general public interest, into private law duties: Imperial Tobacco, at para. 50.
[22] However, I am of the view that a private law duty could arise under the third category set out in Imperial Tobacco. It is important to bear in mind that at the stage of a pleadings motion, the issue is not whether the duty of care should be recognized, but whether it could be – in other words, whether it can be said that the claim has no reasonable prospect of success.
[23] A private law duty may arise from the combination of statutory public law duties and interactions that affect the plaintiff where the pleaded facts allege a relationship between the government actor and the plaintiff that is distinct and more particularized than the public at large affected by the public duties created by the legislation.
[24] In the context of government actors, the concern is for the creation of a link between the plaintiff and the defendant such that the private law duty imposed on government arising out of a public law choice to legislate in the public interest is not unduly broad. There must be something about the individual or group captured by the proposed duty of care that is more specific, more tailored, than all members of the public captured by the public purpose of the legislation: Vlanich v. Typhair, 2016 ONCA 517, 131 O.R. (3d) 353, at para. 39.
[25] In Taylor, at para. 80, this court described the types of cases where courts have found a prima facie duty of care involving a government actor as ones where “the facts demonstrate a relationship and connection between the regulator and the individual that is distinct from and more direct than the relationship between the regulator and that part of the public affected by the regulator’s work” (emphasis added; see also para. 104).
[26] Two cases are helpful in illustrating the type of more specific relationship that could be pleaded, and more particularized group said to be owed a private law duty, by a government actor acting under legislation that regulates in the public interest.
[27] In Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, at paras. 43-55, the Supreme Court upheld the finding at trial that the territorial government, acting pursuant to legislation regulating mining safety, owed a duty of care to miners in a particular mine where there were ongoing issues of violence arising out of a strike that ultimately led to a bomb being planted and exploding at the mine. The court focused on three aspects of the relationship between the regulator and the miners that created a relationship of sufficient proximity to give rise to a private law duty of care. First, the group to whom the duty was owed – miners at the specific mine with an ongoing labour dispute – was small and clearly defined, rather than the public at large. Second, the government inspectors had direct contact that affected the miners in the sense that the inspectors were at the mine during the strike “almost daily”. Third, the inspectors’ statutory duties related directly to the conduct of the miners themselves. These factors led the Supreme Court to accept that there was a relationship of sufficient proximity between the injured miners and the government defendant based on the “close and direct” effect of the inspectors’ actions on the miners: at para. 55.
[28] In Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225 (Div. Ct.), leave to appeal refused, (1991) 1991 CanLII 7565 (ON CA), 1 O.R. (3d) 416 (Ont. C.A.), the Divisional Court upheld a motion judge’s decision that the plaintiff could sue the police in negligence for failing to warn her that she was at risk from a serial rapist in her neighbourhood. The court accepted that the plaintiff had pleaded facts that could establish sufficient proximity to create a private law duty of care on the police. Important aspects of the pleadings that led to this conclusion included that the police knew of the existence of a serial rapist, and that by the time the plaintiff was attacked, they knew the women targeted by the perpetrator were a limited group, identifiable by a number of characteristics including the specific neighbourhood where the attacks occurred, that the victims all resided in second or third floor apartments, that entry was gained by a balcony door, and that the victims were all white, single, and female. The facts alleged in the claim provided a basis for the allegation that the police knew or ought to have known the plaintiff was part of a “narrow and distinct group of potential victims”: at p. 230.
[29] It is important to bear in mind that reference in Imperial Tobacco to interactions between the plaintiff and the defendant on which a duty of care is argued to be based is not limited to personal interactions between the plaintiff and the defendant. Rather, the concern is with “whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed”: Hill, at para. 29 (emphasis in original). The motion judge noted, in his description of allegations that were absent from the pleading, that it did not allege that the respondent had any “personal interactions” or communications with the appellants. Respectfully, this erroneously narrowed the proximity inquiry. What is required is actions of the defendant that have a close or direct effect on the victim. Sometimes these will be personal interactions, but not always.
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