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Torts - Negligence - Systemic. Canada (Attorney General) v. Nasogaluak
In Canada (Attorney General) v. Nasogaluak (Fed CA, 2023) the Federal Court of Appeal considers the law of systemic negligence, here in a government negligence context where policy versus operational concerns were involved:[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. ....
[33] Here, the motion judge devoted most of her discussion of whether a reasonable cause of action was pleaded in systemic negligence to the question of whether what was pleaded was a breach of a duty of care in policy-making or in the operation of the RCMP in the Territories. She concluded (at paragraph 34 of her reasons) that the material facts pleaded here made it "“clear it is operation and not policy at issue,”" and that Mr. Nasogaluak was therefore free to allege negligence. In coming to this conclusion, she described the allegations of systemic negligence as directed not to a true policy decision but to "“the lack of following policy—thus making it operational,”" and drew support from paragraph 51 of the amended statement of claim, which reads as follows:Class members had the reasonable expectation that Canada would operate its RCMP Detachments in the Territories in a manner that was substantially similar to the care, control and supervision provided to non-Aboriginal Persons in custody of the RCMP during the Class Period. [34] The motion judge went on to consider whether the operational negligence she concluded was pleaded could be the proper subject of a systemic negligence claim. In determining that it could, she relied on the Supreme Court’s decision in Rumley v. British Columbia, 2001 SCC 69 and that of the Ontario Court of Appeal in Francis v. Ontario, 2021 ONCA 197.
[35] In Rumley, which dealt with a claim by current and former students abused at a residential school for deaf and blind children, the Court (at para. 30) described the systemic negligence claim as alleging a "“failure to have in place management and operations procedures that would reasonably have prevented the abuse,”" and stated that "“[t]hese [were] actions (or omissions) whose reasonability can be determined without reference to the circumstances of any individual class member.”" At paragraph 33 of her reasons, the motion judge described this position as "“precisely in line with what the Plaintiff is alleging is the case here.”"
[36] In Francis, where the Court of Appeal upheld a claim of systemic negligence relating to Ontario’s placement of inmates in administrative segregation, the Court stated (at para. 103) that if it was accepted that actions were taken that made injury to an inmate reasonably foreseeable on an individual basis, there was "“no principled reason why that could not be the case on a class basis.”" At paragraph 39 of her reasons, the motion judge stated that she saw "“strong similarities”" between this case and Francis. She also (at paragraph 36) described as "“well established”" the proposition that governments owe a duty of care to individuals arrested, detained, or otherwise in their custody. This appears to be a reference to a line of cases that includes the Supreme Court’s decision in MacLean v. R., 1972 CanLII 124 (SCC), [1973] S.C.R. 2, referred to further below. . Levac v. James
In Levac v. James (Ont CA, 2023) the Court of Appeal briefly characterizes 'systemic negligence':[47] Ms. Levac also emphasizes that this class action alleges systemic negligence, which is not specific to any one victim, but rather to a class of victims as a group, relying on Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at paras. 30-34. The theory of negligence in such cases is that the impugned acts or omissions of the defendant are negligent because they resulted in a system that was inadequate to protect the class from harm: White v. Canada (Attorney General), 2002 BCSC 1164, 4 B.C.L.R. (4th) 161, at para. 48.
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