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Part 2


. Canada (Attorney General) v. Nasogaluak

In Canada (Attorney General) v. Nasogaluak (Fed CA, 2023) the Federal Court of Appeal considers basics a negligence law, here respecting government liability:
[28] As this Court stated in Greenwood (at para. 153), "“the required elements that a plaintiff must establish are the same in all negligence claims, regardless of whether or not they are pursued on a systemic basis.”" The Court in Greenwood went on to list these required elements as the Supreme Court set them out in Saadati v. Moorhead, 2017 SCC 28 at para. 13:
Liability in negligence law is conditioned upon the claimant showing (i) that the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; (ii) that the defendant breached that duty by failing to observe the applicable standard of care; (iii) that the claimant sustained damage; and (iv) that such damage was caused, in fact and in law, by the defendant’s breach.
[29] Whether a defendant (including a defendant who is a government official) owed a duty of care to the claimant, so that the first element is met, is determined by applying what is known as the Anns/Cooper test: Nelson (City) v. Marchi, 2021 SCC 41 at paras. 16-19. The test has two stages. The question at the first stage is whether the defendant owed the claimant a prima facie duty of care. The answer will be affirmative if there was a relationship of proximity between the claimant and the defendant, meaning that the defendant’s failure to take reasonable care might foreseeably cause loss or harm to the claimant. The question at the second stage is whether there are residual policy concerns outside the parties’ relationship that should negate any prima facie duty of care found to exist at the first stage.

[30] As the Supreme Court clarified in Nelson (at para. 16), "“the framework applies differently depending on whether the plaintiff’s claim falls within or is analogous to an established duty of care or whether the claim is novel because proximity has not been recognized before.”" In the former situation, it is generally not necessary to proceed to the second stage of the test. However, if the claim is a novel one, "“the full two-stage Anns/Cooper framework applies.”" In determining whether a claim is analogous to a previously established category of duty, the Court clarified (Nelson at para. 27, internal citations omitted), "“a court should be attentive to the particular factors which justified recognizing that prior category in order to determine whether the relationship at issue is, in fact, truly the same as or analogous to that which was previously recognized.”"

[31] Among the residual policy concerns that have been held at the second stage of the test to negate a prima facie duty of care is maintenance of the separation of powers as between the executive, legislative, and judicial branches of government. As the Supreme Court stated in Nelson (at para. 43, internal citation omitted), "“[i]t is fundamental to the constitutional order that each branch plays its proper role and that ‘no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.’”"

[32] Reflecting this concern, the Supreme Court has adopted the principle that "“core policy decisions”" of the legislative and executive branches should be shielded from liability for negligence, as long as they are not irrational or made in bad faith (Nelson at para. 35). Decisions in the "“core policy decision”" category, the Court has stated (Nelson at para. 44, internal citations omitted),
involve weighing competing economic, social, and political factors and conducting contextualized analyses of information. These decisions are not based only on objective considerations but require value judgments—reasonable people can and do legitimately disagree […]. If courts were to weigh in, they would be second-guessing the decisions of democratically-elected government officials and simply substituting their own opinions.
. Aylmer Meat Packers Inc. v. Ontario

In Aylmer Meat Packers Inc. v. Ontario (Ont CA, 2022) the Court of Appeal considered a lawsuit by an abattoir against the province. The court addressed the issue of whether the province owed a private law duty of care to the plaintiff:
(1) Did the Ministry owe the abattoir’s owner, Aylmer, a private law duty of care to act reasonably in exercising its regulatory responsibilities?

[21] Aylmer argues that the Ministry owed it a duty to act reasonably in exercising its regulatory responsibilities in suspending the abattoir licence, in occupying its plant, and in storing and destroying the detained meat.

(a) The Governing Principles – Anns/Cooper Overview

[22] In order to ground a private law duty of care in negligence when the actions of public bodies adversely affect the private interests of regulated entities, three elements are necessary: the harm complained of must have been reasonably foreseeable; there must have been sufficient proximity between the plaintiff and the governmental defendant, such that it would be fair and just to impose a duty of care on the defendant; and, there must be no residual policy reasons for declining to impose such a duty.[2] The last two elements comprise the two-stage Anns/Cooper analysis.

[23] The trial judge found it to be “reasonably foreseeable that OMAF’s actions in occupying Aylmer’s abattoir, suspending Aylmer’s licence to operate and detaining Aylmer’s meat product would harm Aylmer’s economic interests”: at para. 76. This case, therefore, hinges on the outcome of the two-stage Anns/Cooper analysis, to which I now turn.

(i) The first Anns/Cooper stage: Is there sufficient proximity?

[24] The term "proximity" in the context of public actors is generally used in the authorities to characterize the type of relationship in which a duty of care arises from a statute or through the interactions between the governmental actor and the plaintiff in the operation of a statutory scheme.[3] The court must consider whether the case falls within or is analogous to a category of cases in which a duty of care has previously been recognized. If the case does not fall into a recognized category, then the court considers whether the case is one for which a new duty of care should be recognized: Cooper, at para. 31.

[25] The key cases in the evolution of the Anns/Cooper test after Cooper, in the context of the negligence of government agencies, are Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; and, Nelson (City) v. Marchi, 2021 SCC 41.

[26] In Nelson, the Supreme Court explained, at para. 41, that: "[a]s a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual" (citing Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, at p. 1244).

[27] But Cooper had introduced a potential stumbling block for plaintiffs that was later clarified in Imperial Tobacco. At para. 43 of Cooper, the court stipulated that, “the factors giving rise to proximity, if they exist, must arise from the statute under which the Registrar is appointed.” Because “that statute is the only source of his duties, private or public…[i]f a duty to investors with regulated mortgage brokers is to be found, it must be in the statute”. Plaintiffs did not fare well under this single-source stipulation.

[28] In Imperial Tobacco, McLachlin C.J. clarified Cooper. She identified three situations in which legislation could play a role in determining whether the governmental actor owes the plaintiff a prima facie duty of care. The first is where the legislation gives rise to a duty of care explicitly or by implication. The second is:
[W]here the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant. The argument in these cases is that the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care. [Emphasis added].
The third type of situation combines the other two: Imperial Tobacco, at paras. 43-46.

[29] Courts determine proximity in new situations by "looking at expectations, representations, reliance, and the property or other interests involved", in order to "evaluate the closeness of the relationship between the plaintiff and the defendant", and by asking "whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant": Cooper, at para. 34. However, "[t]here is no definitive list" of factors: Syl Apps, at para. 30.

[30] I consider Hill to be somewhat analogous to this case. In Hill, the court recognized the tort of negligent investigation by police. McLachlin C.J. stated that while proximity requires the actions of the wrongdoer to have a sufficiently "close and direct" effect on the victim, this does not require physical proximity: at para. 29. The absence of a personal relationship, while an "important factor to consider", is "not necessarily determinative": at para. 30.

[31] In Hill, McLachlin C.J. noted that once an investigating police officer identifies a “particularized suspect”, “a close and direct relationship” arises between the officer and the suspect: at para. 33, even in the absence of “personal representations and consequent reliance”: at para. 34. This is because the “targeted suspect”, whose interests are directly affected, has a stake in the investigation: at para. 34.

[32] If the court finds proximity at the first Anns/Cooper stage, the second stage of the analysis comes into play.

(ii) The second Anns/Cooper stage: Are there residual policy reasons for declining to impose a duty?

[33] At the second stage of the Anns/Cooper analysis, the court determines whether there are residual policy reasons to decline to impose a duty of care on the governmental actor. A significant policy consideration is whether the imposition of negligence on the government actor would trigger a conflict with its public duty. As this court noted in Williams v. Toronto (City), 2016 ONCA 666, 133 O.R. (3d) 663, at paras. 65-66: “The negative policy consequences of such a conflict could provide a compelling reason for refusing to find proximity: Syl Apps, at para. 28; Fullowka, at para. 72”.

[34] However, in Hill, McLachlin C.J. cautioned that “policy concerns raised against imposing a duty of care must be more than speculative; a real potential for negative consequences must be apparent”: at para. 48, because “a duty of care in tort law should not be denied on speculative grounds”: at para. 43. It is not sufficient for the defendant to posit an abstract and only “potential conflict”.

[35] In Hill, McLachlin C.J. dismissed the argument that a conflict might arise between the officer’s duty to prevent crime and a duty of care to the suspect, because the officer’s public duty “is not to investigate in an unconstrained manner” but “in accordance with the law”, including tort law: at para. 41. She pointed out that “police might become more careful in conducting investigations if a duty of care in tort is recognized”, which she considered “not necessarily a bad thing”: at para. 56. This thought is consistent with Cromwell J.’s observation in Fullowka, that imposing a duty of care on mining inspectors would complement their statutory duty, not conflict with it.

[36] This is also the stage at which the court decides whether the government action at issue is a policy decision or an operational decision. As Brown J.A. noted in Bowman v. Ontario, 2022 ONCA 477, at para. 59: “at common law public authorities enjoy an immunity from suit for negligence for ‘true policy decisions’”.

[37] The basic principle was expressed in Just: because “the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions”, “[t]rue policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors": at pp. 1239-40.

[38] The distinction between policy and operational decisions remains important but, as McLachlin C.J. noted in Imperial Tobacco, at para. 72, this “question of what constitutes a policy decision that is generally protected from negligence liability is a vexed one”. There is no “stark dichotomy between two water-tight compartments – policy decisions and operational decisions”, because “decisions in real life may not fall neatly into one category or the other”: at para. 86.

[39] In Nelson, the Supreme Court reflected, at para. 53, on McLachlin C.J.’s observations in Imperial Tobacco, and noted that in some cases, “the juxtaposition of core policy and operational implementation may clearly identify the decisions that should not be subject to court oversight as opposed to those which attract liability in negligence”. As I interpret these comments, the converse would also be true; in some cases, it will be plain and obvious that only operational decisions are in play, not “core policy decisions”. As I will explain, although in argument Ontario alluded to policy considerations to justify the Ministry’s conduct, only its operational decisions are in play.

[40] I also note that it is no business of the court to micromanage operational decisions by governmental actors. The court must accord a reasonable margin of manoeuvre, margin of judgment, or range of discretion to the governmental actor in exercising its regulatory responsibilities. See, Hill, at paras. 54, 73. However, the existence of discretion is not to be taken into account in determining whether a duty of care exists, but rather, in specifying the standard of care: Hill, at para. 56.
At paras 41-64 the Court of Appeal walks these principles through the facts of the case.

. Bowman v. Ontario

In Bowman v. Ontario (Ont CA, 2022) the Court of Appeal considered the immunity of policy decisions from negligence law:
Analysis: Core policy immunity

[68] Canadian jurisprudence has long recognized that a sphere of government decision-making, consisting of core policy decisions, should remain free from judicial supervision based on the standard of care in negligence: Nelson, at para. 2. At common law, core policy decisions are immune from negligence liability, as long as they are not irrational or made in bad faith: Nelson, at paras. 3, 41.[7] Regardless of whether a plaintiff is asserting that a public authority owes it a duty of care under an established or analogous duty of care or a novel duty of care, it is open to the public authority to prove that the relevant government decision was a core policy decision immune from liability in negligence: Nelson, at paras. 24, 30. As explained by the Supreme Court at para. 36 in its Nelson decision:
[W]e need not decide whether core policy immunity is best conceived of as a rule for how the Just[8] category operates, or whether it should be viewed as a stage two consideration under the Anns/Cooper framework even when an established category of duty applies. It makes no practical difference to the outcome of the appeal. Regardless of where core policy immunity is located in the duty of care framework, the same principles apply in determining whether an immune policy decision is at issue. Those principles apply in any case in which a public authority defendant raises core policy immunity, whether the case involves a novel duty of care, falls within the Just category, or falls within another established or analogous category. What is most important is that immunity for core policy decisions made by government defendants is well understood and fully explored where the nature of the claim calls for it. [Emphasis added.]
[69] Accordingly, the appellants’ suggestion that immunity for core policy decisions does not apply where a duty of care has been recognized in analogous cases is misplaced.[9] Nelson teaches that a public authority may raise core policy immunity in both existing/analogous or novel duty of care cases. Where the public authority does so, as in the present case, the key focus is always on the nature of the government decision in issue: Nelson, at paras. 2, 54.

[70] The certification judge quite properly examined the Amended Claim to ascertain the nature of the government decision in issue in the appellants’ negligence claim. He concluded that their claim rested on a Cabinet-level decision to cancel the BI Program and cease making the BI Payments thereunder: at paras. 48, 53 and 54. I see no error in that conclusion. It accurately captures the gist of the negligence complaint pleaded in the Amended Claim, which is reproduced in para. 57 above.

[71] Nor do I see any error in the certification judge’s conclusion that “it is plain and obvious that Ontario’s decision to cancel the pilot project and cease making the basic income payments was a core policy decision for which Ontario may rely upon Crown common law immunity”: at para. 54. The Amended Claim discloses that that decision was made by democratically accountable persons with a high level of authority (the provincial cabinet), concerned budgetary allotments for government departments, and involved fundamental, value judgment-infused public policy choices about the means by which to provide social assistance benefits to a large group of persons, hallmarks of a core policy decision: Nelson, at paras. 54, 60, 62, 65.[10]

[72] In Bowman 2019, the Divisional Court also characterized Ontario’s decision to terminate the BI Program as a Cabinet policy decision, albeit approaching the issue from the perspective of whether the decision was subject to judicial review. The Divisional Court observed that: the authority to implement the BI Program was based on the Crown’s common law spending powers; a government cannot be required by a court to continue to fund an expenditure as the distribution of government funds is a political, not a judicial, function; and courts have no power to review the policy considerations that motivate Cabinet decisions: Bowman 2019, at paras. 35, 38, 40.

[73] Finally, the appellants argue that once a defendant undertakes to engage in an activity, a duty arises to ensure the plaintiff is not harmed. The common law immunity of public authorities from liability for core policy decisions recognizes that such decisions may cause harm to private parties. Nevertheless, the principle of protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers means that the remedies for those decisions must be through the ballot box instead of the courts: Nelson, at paras. 47, 49.
. Nelson (City) v. Marchi

In Nelson (City) v. Marchi (SCC, 2021) the Supreme Court of Canada considered negligence against the BC government and the role of policy issue immunity:
I. Overview

[1] Under Canadian tort law, there is no doubt that governments may sometimes be held liable for damage caused by their negligence in the same way as private defendants. At the same time, the law of negligence must account for the unique role of public authorities in governing society in the public interest. Public bodies set priorities and balance competing interests with finite resources. They make difficult public policy choices that impact people differently and sometimes cause harm to private parties. This is an inevitable aspect of the business of governing. Accountability for that harm is found in the ballot box, not the courts. Courts are not institutionally designed to review polycentric government decisions, and public bodies must be shielded to some extent from the chilling effect of the threat of private lawsuits.

[2] Accordingly, courts have recognized that a sphere of government decision-making should remain free from judicial supervision based on the standard of care in negligence. Defining the scope of this immunity has challenged courts for decades. In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, this Court explained that “core policy” government decisions — defined as “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors” — must be shielded from liability in negligence (para. 90). In ascertaining whether a decision is one of core policy, the key focus is always on the nature of the decision.

[3] In the decade since Imperial Tobacco, there has been continued confusion on when core policy immunity applies. This appeal requires the Court to clarify how to distinguish immune policy decisions from government activities that attract liability for negligence. We conclude that the rationale for core policy immunity serves as an overarching guiding principle. Core policy decisions are immune from negligence liability because each branch of government has a core institutional role and competency that must be protected from interference by the other branches. We identify four factors from this Court’s jurisprudence that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. The separation of powers rationale animating the immunity guides how the factors weigh in the analysis.
The court engages is a prolonged duty of care analysis at paras 14-68.

. Nelson (City) v. Marchi

In Nelson (City) v. Marchi (SCC, 2021) the Supreme Court of Canada considered the issue of standard of care owed by a municipality:
[91] To avoid liability, a defendant must “exercise the standard of care expected that would be of an ordinary, reasonable and prudent person in the same circumstances” (Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 28). Relevant factors in this assessment include whether the risk of injury was reasonably foreseeable, the likelihood of damage and the availability and cost of preventative measures (P. H. Osborne, The Law of Torts (6th ed. 2020), at pp. 29-30; Bolton v. Stone, [1951] A.C. 850 (H.L.)). A reasonable person “takes precautions against risks which are reasonably likely to happen” (Bolton, at p. 863).

[92] The reasonableness standard applies regardless of whether the defendant is a government or a private actor (Just, at p. 1243). In Just, Cory J. recognized that the “standard of care imposed upon the Crown may not be the same as that owed by an individual” (at p. 1244). However, this is not because public policy concerns applicable to governments displace the reasonableness standard. In fact, Cory J. was clear that the analysis under duty of care must be “kept separate and distinct” from the analysis of the standard of care (at p. 1243). It is important that the standard of care analysis not be used as another opportunity to immunize governments from liability, especially when a determination has already been made that the impugned government conduct was not core policy.
. Charlesfort Development Limited v. Ottawa (City)

In Charlesfort Development Limited v. Ottawa (City) (Ont CA, 2021) the Court of Appeal considered the negligence duty of care against a government body:
(iii) Claims against government bodies

[41] In addition, this is a claim against a government body. There are generally two situations that may create a prima facie duty of care in claims against a government defendant: where a duty of care arises from the statutory scheme or where a duty of care arises from interactions between the plaintiff and the government and is not negated by statute: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 43. Proximity might also be based both on the government’s statutory duties and interactions between the parties: at para. 46.

[42] In the first situation, it “may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care”: Imperial Tobacco, at para. 44. Often, statutes “are aimed at public goods” and it may be “difficult to infer that the legislature intended to create private law tort duties to claimants”: at para. 44.



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Last modified: 07-02-24
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