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Duty of Care (II)

These are post-Livent cases.

. Darmar Farms Inc. v. Syngenta Canada Inc.

In Darmar Farms Inc. v. Syngenta Canada Inc. (Ont CA, 2019) the Court of Appeal again considered the Livent case in it's assessment of the duty of care element of negligence, here for pure economic loss:
(b) The Principles Applicable to Determining a Duty of Care in a Claim for Pure Economic Loss

[54] In Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 (CanLII), [2017] 2 S.C.R. 855, the Supreme Court reviewed the approach applicable to determining the existence and extent of a duty of care in a claim for economic loss. I summarize the principles that are relevant to the analysis here.
• The approach to determining a duty of care in cases of pure economic loss should be the same whether the claim is one for negligent misrepresentation or other cases of negligence.

• The approach is the modified Anns/Cooper test, which addresses the question of whether a duty of care exists in two stages, first, whether a prima facie duty exists and if so, second, whether residual policy considerations should negate or limit the duty.

• At the first stage the court considers: (i) proximity, namely, whether the parties are in such a close and direct relationship that it would be just and fair to impose a duty of care in law; and (ii) foreseeability of harm, namely, whether an injury to the plaintiff was a reasonably foreseeable consequence of negligence of the defendant. A properly conducted stage one analysis will rarely, if ever, find a prima facie duty of care that could give rise to indeterminate liability.

• At the second stage the court considers whether, despite the reasonably foreseeable quality of the plaintiff’s injury and the proximity of the relationship, the defendant should nonetheless be insulated from liability. This policy analysis is something which should be relied on narrowly, and rarely if ever due to concerns about indeterminate liability which ought not to persist after a proper stage one analysis.
see Deloitte, at paras. 16, 22-23, 25, 32 and 41-42.

[55] I note here two points that arise from the foregoing. First, the approach described above applies to both of Darmar’s negligence claims – that in misrepresentation and that for premature commercialization: Lewis Klar, “Duty of Care for Negligent Misrepresentation—and Beyond?” (2018) 48 The Advocates Quarterly 235 at 238. However, this does not mean that applying the same approach will yield the same result for both of Darmar’s negligence claims. Second, the parties’ arguments about whether recognizing a duty in this case will or will not give rise to indeterminate liability are largely subsumed in the considerations that go into the question of whether a prima facie duty of care exists for either of the misrepresentation or premature commercialization claims in the first stage of the analysis.

[56] Because the two factors relating to the existence of a prima facie duty of care, proximity and foreseeability, are central to this appeal, I discuss them further below.

(i) Proximity

[57] In Deloitte, two routes to establishing proximity were discussed.

[58] The first route is where a party seeks to base a finding of proximity upon a category established by prior case law to be proximate, or a category analogous thereto: para. 28. As the motion judge noted, where a claim is for pure economic loss, courts have previously recognized certain categories of proximate relationships, one of which is in claims for negligent misrepresentation: Design Services Ltd. v. Canada, 2008 SCC 22 (CanLII), [2008] 1 S.C.R. 737, at paras. 30-31.

[59] The second route is where a previously established proximate relationship cannot be found. This does not end the proximity inquiry; the existence of recognized categories does not foreclose finding new categories: Martel Buildings Ltd. v. Canada, 2000 SCC 60 (CanLII), [2000] 2 S.C.R. 860, at paras. 38-39. In such cases “courts must undertake a full proximity analysis. To determine whether the ‘‘close and direct’ relationship which is the hallmark of the common law duty of care’ exists…courts must examine all relevant ‘factors arising from the relationship between the plaintiff and the defendant’…While these factors are diverse and depend on the circumstances of each case…this Court has maintained that they include ‘expectations, representations, reliance, and the property or other interests involved’…as well as any statutory obligations…”: Deloitte, at para. 29 (internal citations omitted, emphasis in the original).

[60] A further point made in Deloitte is that it is not simply the existence of a category of proximate relationship that matters; the scope of that proximate relationship must also be considered. This is illustrated by the following passages from Deloitte, which make it clear that conduct that falls outside the scope of the proximate relationship falls outside the scope of the defendant’s duty of care:
[30] In cases of pure economic loss arising from negligent misrepresentation or performance of a service, two factors are determinative in the proximity analysis: the defendant’s undertaking and the plaintiff’s reliance. Where the defendant undertakes to provide a representation or service in circumstances that invite the plaintiff’s reasonable reliance, the defendant becomes obligated to take reasonable care. And, the plaintiff has a right to rely on the defendant’s undertaking to do so (W. N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913), 23 Yale L.J. 16, at pp. 49-50). These corollary rights and obligations create a relationship of proximity (Haig, at p. 477; Caparo Industries plc. v. Dickman, [1990] 1 All E.R. 568 (H.L.), at pp. 637-38; Glanzer v. Shepard, 135 N.E. 275 (N.Y. 1922) at pp. 275-76; Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931), at pp. 445-46; E. J. Weinrib, “The Disintegration of Duty” (2006), 31 Adv. Q. 212, at p. 230).

[31] Rights, like duties, are, however, not limitless. Any reliance on the part of the plaintiff which falls outside of the scope of the defendant’s undertaking of responsibility — that is, of the purpose for which the representation was made or the service was undertaken — necessarily falls outside the scope of the proximate relationship and, therefore, of the defendant’s duty of care (Weinrib; A. Beever, Rediscovering the Law of Negligence (2007), at pp. 293-94). This principle, also referred to as the “end and aim” rule, properly limits liability on the basis that the defendant cannot be liable for a risk of injury against which he did not undertake to protect (Glanzer, at pp. 275 and 277; Ultramares, at pp. 445-46; Haig, at p. 482). By assessing all relevant factors arising from the relationship between the parties, the proximity analysis not only determines the existence of a relationship of proximity, but also delineates the scope of the rights and duties which flow from that relationship. In short, it furnishes not only a “principled basis upon which to draw the line between those to whom the duty is owed and those to whom it is not” (Fullowka, at para. 70), but also a principled delineation of the scope of such duty, based upon the purpose for which the defendant undertakes responsibility. As we will explain, these principled limits are essential to determining the type of injury that was a reasonably foreseeable consequence of the defendant’s negligence. [Emphasis added.]
(ii) Reasonable Foreseeability

[61] As noted above, this part of the inquiry asks whether an injury to the plaintiff was a reasonably foreseeable consequence of negligence of the defendant: Deloitte, at para. 32. The scope of proximity also affects the analysis of reasonable foreseeability. As the court in Deloitte explained at para. 35:
… Both the reasonableness and the reasonable foreseeability of the plaintiff’s reliance will be determined by the relationship of proximity between the parties; a plaintiff has a right to rely on a defendant to act with reasonable care for the particular purpose of the defendant’s undertaking, and his or her reliance on the defendant for that purpose is therefore both reasonable and reasonably foreseeable. But a plaintiff has no right to rely on a defendant for any other purpose, because such reliance would fall outside the scope of the defendant’s undertaking. As such, any consequent injury could not have been reasonably foreseeable. [Emphasis added.]
. Bonello v. Gores Landing Marina (1986) Limited

In Bonello v. Gores Landing Marina (1986) Limited (Ont CA, 2019) the Court of Appeal commented as follows on the negligence duty of care:
[24] Under the Anns/Cooper test, demonstrating the existence of a prima facie duty of care requires establishing two elements: reasonable foreseeability of harm and proximity: Rankin’s Garage, at para. 21.

[25] The principle of reasonable foreseeability of harm requires an inquiry into whether there was reason for a defendant to have contemplated that his or her conduct could result in the harm complained of: Rankin’s Garage, at para. 22. When determining whether reasonable foreseeability is established, the proper question to ask is “…whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged”: Rankin’s Garage, at para. 24.

[26] Foreseeability alone is not enough to establish a prima face duty of care; proximity also must be established: Livent, at para. 23. The proximity analysis ascertains “whether the parties are in such a ‘close and direct’ relationship that it would be ‘just and fair having regard to that relationship to impose a duty of care in law’”: Livent, at para. 25. Courts must examine all relevant factors arising from the relationship between the plaintiff and the defendant: Livent, at para. 29. Those factors include the “expectations, representations, reliance, and the property or other interests involved” as between the parties: Livent, at para. 29; Rankin’s Garage, at para. 23.
. Lavender v. Miller Bernstein LLP

In Lavender v. Miller Bernstein LLP (Ont CA, 2018) the Court of Appeal reviews the important decision in Deloitte & Touche v. Livent Inc. (Receiver of) (SCC, 2017)("Livent") on the issue of duty of care in negligence:
[29] In reaching these conclusions, the Supreme Court refined and applied the two stages of the Anns/Cooper analysis. At the first stage, the court asks whether the facts establish a prima facie duty of care. The court then proceeds to the second stage, where it asks whether residual policy considerations justify denying liability in tort. I consider these two stages below.

(a) Stage One: Prima Facie Duty of Care

[30] Most relevant for this appeal, the majority of the Supreme Court in Livent, at para. 20, reaffirmed that there is a prima facie duty of care where there exists a “sufficiently close relationship between the plaintiff and the defendant”. This stage of the analysis involves establishing both reasonable foreseeability and proximity. The majority stressed that these elements are conceptually distinct and must be considered separately.

[31] The majority in Livent reiterated the statement from Cooper that “foreseeability alone” is not enough to establish a prima facie duty of care; the first stage of the Anns/Cooper framework requires “something more”. That “something more” is proximity. The majority observed, at para. 24, that it is useful to consider proximity before foreseeability in cases of negligent misrepresentation or negligent performance of a service because “[w]hat the defendant reasonably foresees as flowing from his or her negligence depends upon the characteristics of his or her relationship with the plaintiff, and specifically, in such cases, the purpose of the defendant’s undertaking.”.

[32] The proximity analysis determines whether the parties are sufficiently “close and direct” that it would be “just and fair having regard to their relationship to impose a duty of care”: Livent, at para. 25, citing Cooper, at paras. 32 and 34. As most recently reaffirmed by the Supreme Court in Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (CanLII), at para. 23, that close and direct relationship must be such that “the defendant is under an obligation to be mindful of the plaintiff’s interests.”

[33] A preliminary question at this stage is whether the relationship at issue falls within a previously established category of relationship in which proximity has already been found to exist. If the relationship falls within a previously established category, or is analogous to one, then proximity is established, without more: Livent, at paras. 26-28. The majority in Livent cautioned, however, that courts must be careful to avoid identifying established categories “in an overly broad manner”: at para. 28. As the majority noted, at para. 52, “the mere fact that proximity has been recognized as existing between an auditor and its client for one purpose is insufficient to conclude that proximity exists between the same parties for all purposes” (emphasis in original). Rather, the majority explained, at para. 28, that “a finding of proximity based upon a previously established or analogous category must be grounded not merely upon the identity of the parties, but upon examination of the particular relationship at issue in each case.”

[34] Where an established proximate relationship cannot be found, courts must undertake a full proximity analysis by examining the relationship between the plaintiff and the defendant. Relevant considerations may include, but are not limited to, “expectations, representations, reliance, and the property or other interests involved” as well as any statutory obligations: Livent, at para. 29, citing Cooper, at paras. 34, 38.

[35] In cases of pure economic loss arising from negligent misrepresentation or performance of a service, two factors are “determinative” of the proximity analysis: (i) the defendant’s undertaking; and (ii) the plaintiff’s reliance: Livent, at para. 30. Where the defendant undertakes to provide a representation or service in circumstances that invite the plaintiff’s reasonable reliance, the defendant becomes obligated to take reasonable care, and the plaintiff has a right to rely on the defendant’s undertaking to do so. These “corollary rights and obligations create a relationship of proximity”: Livent, at para. 30.

[36] However, the plaintiff’s reliance must be within the scope of the defendant’s undertaking – that is, the purpose for which the representation was made or the service was undertaken. Anything outside that scope will fall outside the scope of the proximate relationship and the defendant’s duty of care; the defendant cannot be liable for a risk of injury against which it did not undertake to protect: Livent, at para. 31. Further, as the majority in Livent observed, at para. 31, “the proximity analysis not only determines the existence of a relationship of proximity, but also delineates the scope of the rights and duties which flow from that relationship” (emphasis in original).

[37] Although the proximity and reasonable foreseeability stages are analytically distinct, they are nonetheless connected. In cases of negligent misrepresentation or performance of a service, Livent explains that the proximate relationship informs the foreseeability inquiry: at para. 34. A plaintiff’s injury will be reasonably foreseeable in such cases where (1) the defendant should reasonably foresee that the plaintiff will rely on its representation; and (2) reliance would, in the particular circumstances of the case, be reasonable: Livent, at para. 35. This is also defined by the nature of the defendant’s undertaking. The plaintiff may rely on the defendant to act with reasonable care for the particular purpose of the undertaking, but not for a purpose outside the scope of that undertaking.

(b) Stage Two: Residual Policy Considerations

[38] Where a prima facie duty of care is recognized on the basis of proximity and reasonable foreseeability, the analysis advances to stage two of the Anns/Cooper framework. The court goes on to ask whether there are any “residual policy considerations” outside the relationship of the parties – that is, despite the proximate relationship between the parties and the reasonably foreseeable quality of the plaintiff’s injury – that may negate the imposition of a duty of care: Livent, at paras. 37, 41.

[39] The majority in Livent clarified, at para. 41, that the first stage of the Anns/Cooper framework does most of the analytical heavy lifting. Only in rare cases, such as those considering decisions of governmental policy or quasi-judicial bodies, will liability be denied on the basis of stage two. Residual policy considerations contemplate “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”: Livent, at para. 38, citing Cooper, at para. 37.

[40] Accordingly, the Livent majority observed, at para. 42, that rarely, if ever, will a concern for indeterminate liability persist after a properly applied proximity and foreseeability analysis.
. Shah v. LG Chem Ltd.

In Shah v. LG Chem Ltd. (Ont CA, 2018) the Court of Appeal discusses the principle of indeterminate liability in negligence:
[45] It is helpful to review how the concept of indeterminate liability comes into play in the negligence context. In that context, a court will apply the Anns/Cooper test in assessing whether the defendant owes a duty of care to the plaintiff. At the first stage of the test, the court considers proximity and foreseeability. If the court concludes the defendant owes a prima facie duty of care to the plaintiff, it will go on at the second stage of the test to consider whether residual policy concerns, such as indeterminate liability, negate the imposition of a duty of care. In Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 (CanLII), [2017] 2 S.C.R. 855, at para. 43, the majority described what is meant by indeterminate liability:
Indeterminate liability is liability of a specific character, not of a specific amount. In particular, indeterminate liability should not be confused with significant liability…. Certain activities — like flying commercial aircraft, manufacturing pharmaceutical drugs, or auditing a large corporation — may well give rise to significant liability..… [T]he liability arising from these “high risk” undertakings may only be characterized as “indeterminate” if the scope of such liability is impossible to ascertain (Black’s Law Dictionary (10th ed. 2014), sub verbo “indeterminate”). In other words, liability is truly “indeterminate” if “the accepted sources of law and the accepted methods of working with those sources such as deduction and analogy — are insufficient to resolve the question”…. More specifically, there are three pertinent aspects to so-called “indeterminacy” in these cases: (1) value indeterminacy (“liability in an indeterminate amount”); (2) temporal indeterminacy (“liability . . . for an indeterminate time”); and (3) claimant indeterminacy (“liability . . . to an indeterminate class”)…. [Citations omitted.]
[46] The second stage of the Anns/Cooper test comes down to a “normative” assessment of “whether it would be better, for reasons relating to legal or doctrinal order, or reasons arising from other societal concerns, not to recognize a duty of care in a given case”: Livent, at para. 40. A court may decline to recognize a prima facie duty of care on the basis of indeterminate liability, although indeterminate liability is merely a policy consideration, not a policy veto, and rarely should a concern for indeterminate liability persist if a proper proximity and foreseeability analysis is done at stage one of the Anns/Cooper test: Livent, at paras. 42, 45.

[47] In our view, normative concerns about indeterminate liability do not apply in the context of the statutory claim in this case because, when it comes to a claim under s. 36 for loss or damage resulting from a conspiracy under s. 45 of the Competition Act, the normative concerns have already been taken care of by Parliament. In other words, concerns that might otherwise drive the application of the principle of indeterminate liability disappear in the face of the exacting statutory provisions.

[48] All claims under s. 36 require the plaintiff to establish that he or she “suffered loss or damage as a result of … conduct that is contrary to any provision of Part VI”. He or she may only recover “loss or damage proved to have been suffered” as a result of that conduct.

[49] When the alleged conduct is a conspiracy under s. 45, the plaintiff must start by proving the defendant actually conspired to engage in anti-competitive conduct. The essence of conspiracy under s. 45 is an agreement – a meeting of the minds – to do one of the things enumerated in that provision. Here, the defendants are alleged to have agreed to fix prices, unlawful conduct under the former s. 45(1)(b) and the current s. 45(1)(a). They are also alleged to have agreed to “unduly” lessen competition in the production, manufacture, sale and/or supply of LIBs, unlawful conduct under s. 45(1)(c) of the former provision. This conduct is said to have resulted in increased prices. The pleadings suggest that the defendants directed their conduct at the proposed class (including umbrella purchasers), knowing and intending that the proposed class was likely to be injured.

[50] Although the actus reus under s. 45 changed slightly when the provision was amended, it remained focused on whether the alleged conspirator was part of an agreement and whether that agreement was to do something that is prohibited by virtue of s. 45. The mens rea contained in s. 45 has both subjective and objective components. The subjective component requires that the defendant intend to agree, with knowledge of the terms of that agreement. The objective component requires that the defendant objectively intend to achieve the prohibited end, in this case, increasing the price of LIBs and lessening, unduly, competition: see R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at pp. 659-60; Watson v. Bank of America Corp., 2015 BCCA 362 (CanLII), 79 B.C.L.R. (5th) 1, at paras. 74-76; R. c. Proulx, 2016 QCCA 1425 (CanLII), [2016] Q.J. No. 11393, at para. 20.

[51] The respondents argue that because a plaintiff does not have to prove that an alleged conspirator’s conduct is specifically directed at harming that plaintiff, indeterminate liability remains a concern in the context of the statutory claim. We reject the argument that indeterminate liability should be imported into the interpretation of the provisions for that reason. Even though s. 45 does not require proof that the conspirator was directing his or her actions at a specific plaintiff, it contains significant internal constraints. Section 45 limits the reach of liability to those who, at a minimum, specifically intend to agree upon anti-competitive conduct. When combined with s. 36(1), requiring proof of actual loss or damages arising from the conspiracy, concerns regarding overbroad liability evaporate.
. Smith v. Ontario (Attorney General)

In Smith v. Ontario (Attorney General) (Ont CA, 2019) the Court of Appeal considered a motion to strike on the pleadings in a negligent investigation tort case against the police and Crown Attorneys, where the police cross-claimed against the Crown for negligence in giving legal advice. Part of the case dealt with the duty of care element of the tort of negligence:

[116] In order to determine whether or not a duty of care should be recognized, it is necessary to follow the two-stage Anns/Cooper test, which was articulated by the Supreme Court of Canada in Imperial Tobacco as follows, at para. 39:
At the first stage of this test, the question is whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. If this is established, a prima facie duty of care arises and the analysis proceeds to the second stage, which asks whether there are policy reasons why this prima facie duty of care should not be recognized [Citation omitted].
[117] I would note that in Clark this court declined to consider stage 1 of the Anns/Cooper test. However, it offered some comments on the application of stage 2 of the test. I appreciate the panel’s reluctance in Clark to address the proximity issue. However, I believe it is both appropriate and helpful to address the proximity issue in the context of this case. The proximity issue was a ground of appeal and was fully argued. As I will explain, resolution of the issue turns on well-settled principles of law governing the relationship between and respective roles of the police and Crown Attorneys.

[118] I turn now to stage one of the analysis.

(a) Stage One: No Prima Facie Duty of Care

[119] The test for proximity is whether there is such a “close and direct” relationship between the parties that it would be just to impose a legal duty of care: Livent, at para. 25. It is not necessary to conduct a full proximity analysis if a case falls within an established proximate relationship or an analogous category. The present case does not fall within an established or analogous relationship as the appellants allege that they are arguing for the recognition of a new category of relationship giving rise to liability. Accordingly, I will conduct a full proximity analysis, examining relevant factors arising from the relationship between the parties such as the parties’ expectations and reliance: see Livent, at para. 29. In conducting this analysis, I am cognizant that a conflict between an alleged duty of care and a public duty may also constitute a reason for refusing to find proximity: Syl Aps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII), [2007] 3 S.C.R. 83, at para. 28.

[120] As I explain below, I am not satisfied that there is a sufficiently direct and close relationship to impose a prima facie duty of care on Crown Attorneys in providing legal advice to police.

[121] As I have discussed, while cooperation between the police and Crown Attorneys is salutary for the administration of justice, they have separate and distinct roles. Their relationship is defined by mutual independence.

[122] As a matter of law, the police role in investigating crime and deciding whether to lay charges is “distinct and independent from the Crown’s role of prosecution”: Regan, at para. 64. Regan referred to the police’s ultimate responsibility over charge-laying as a “distinct line” between police and Crown functions that must be preserved: at para. 67. To a similar effect are the statements in the Martin Report and the LeSage and Code Report about the separation between the exercise of police functions and Crown Attorney functions. As I have explained earlier, the statutory framework confirms this separation of functions. Read together, the Police Services Act and the Crown Attorneys Act make clear that the Legislature contemplated that police officers, not Crown Attorneys, have sole responsibility for laying charges.

[123] In the course of an investigation, police officers are required to weigh the evidence to a certain extent: Hill, at para. 50; Martin Report, at p. 117. Unlike Crown Attorneys, however, they have no obligation to “evaluate evidence according to legal standards or to make legal judgments”: Hill, at para. 50.

[124] Once a charge is laid, it is the role of Crown Attorneys in this province to decide whether to commence or continue a prosecution based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest: see Miazga, at para. 64. As the Martin Report stated, Crown Attorneys thus must take into account many factors that the police are not required to consider. Not only do they need to see that the public interest is served, but they also should determine whether the evidence that the police have gathered will stand up in court: at pp. 117-118. As the Supreme Court held in Regan, at para. 87, “The expectation is that police officers and Crown Attorneys will act according to their distinct roles in the process.”

[125] This separation of police and Crown Attorney functions both safeguards police independence and helps preserve prosecutorial independence. In light of their separate and independent roles, it is not reasonable for police to expect Crown Attorneys to owe them a private law duty of care in giving legal advice.

[126] Imposing a private law duty of care on Crown Attorneys in providing legal advice to police would also be at odds with the public role that Crown Attorneys play in the administration of justice. Crown Attorneys have a duty to “act for the public and the administration of justice resolutely and honourably”: Law Society of Ontario, Rules of Professional Conduct, Rule, 5.1-3. Under the Crown Attorneys Act, Crown Attorneys have public duties. The Supreme Court recognized the public nature of these duties and the importance of protecting Crown Attorneys’ ability to make independent decisions in Miazga. As the court held at para. 47,
In exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General that brings the principle of independence into play. Its fundamental importance lies, not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as “ministers of justice”: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at p. 25, per Locke J.
[127] In providing legal advice to police officers, Crown Attorneys thus owe duties to the public at large. Imposing a private law duty of care risks putting Crown Attorneys in a conflict of interest situation.

[128] Finally, I note that in support of their argument in favour of establishing a prima facie duty of care the appellants rely on the Supreme Court’s finding in Campbell, at para. 50, that a solicitor-client relationship with its “attendant duties, responsibilities and privileges” formed between the RCMP and the Department of Justice lawyer from whom the RCMP officers sought legal advice. I am not persuaded that Campbell assists the appellants. Campbell was not a torts case, and the Supreme Court did not conduct any duty of care analysis in its decision. The case does stand for the principle that it is important that the police be able to obtain legal advice and that solicitor-client privilege should attach to protect the contents of that advice from disclosure. The mutual independence of the police and the Attorney General thus did not bar the RCMP from asserting a right of confidentiality over the legal advice provided: Campbell, at para. 54. However, it does not follow from Campbell that imposing private law liability on Crown Attorneys who provide legal advice to police is necessary to ensure that the police can obtain legal advice. To the contrary, the fact that the relationship between police and Crown Attorneys has been characterized by mutual cooperation to date suggests that imposing private law liability is not necessary to ensure that the police can obtain legal advice.

[129] In light of my conclusion on proximity, it is unnecessary to consider foreseeability.

[130] I conclude that, given the lack of proximity, the respondent Crown Attorneys do not owe a prima facie duty of care to the Durham appellants.

(b) Stage Two: Residual Policy Considerations

[131] Only if there is a prima facie duty of care is it necessary to consider whether there are residual policy considerations that negate such a duty. In this case, I have found there is no prima facie duty and so it is unnecessary to consider stage 2. However, in the event I am wrong on stage 1, I would conclude that this is one of the rare cases in which stage 2 considerations negate a prima facie duty of care.

[132] Stage two of the Anns/Cooper test focuses on “residual policy considerations” outside of the relationship of the parties. These concerns include the effect of recognizing a duty of care on “other legal obligations, the legal system and society more generally”: Livent, at para. 38, quoting Cooper, at para. 37. This stage is a “normative inquiry” that allows the court to consider whether “reasons relating to legal or doctrinal order,” or other societal concerns, should negate a duty of care: Livent, at para. 40. To negate a prima facie duty of care, “a real potential for negative consequences must be apparent” from the policy concerns at play: Hill, at para. 48.

[133] The same two policy concerns that compel the application of prosecutorial immunity to these circumstances also operate as residual policy concerns that negate the recognition of a duty of care. First, there is the concern that imposing a duty of care would divert Crown counsel from their important public duties. Second, there is the concern that the spectre of liability would lead Crown Attorneys to lawyer defensively to protect their own interests – which, on the facts of this case, could also be used as a stage one factor. Importantly, however, as the Supreme Court explained at para. 73 of Henry, “[t]he public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown’s role as a quasi-judicial officer.”

[134] A third residual policy concern is that imposing a duty of care on Crown Attorneys would undermine the mutual independence and distinct roles of police and Crown Attorneys, which in turn could harm the functioning of the criminal justice system. Police officers and Crown Attorneys constitute the “two arms of the criminal justice system”: Regan, at para. 67. Their roles are central to the functioning of the legal system. As Justice Rosenberg explained, the erosion of the distinct line between Crown and police functions poses “dangers to the proper functioning of the system”: Rosenberg, “The Attorney General,” at p. 829.

[135] This case illustrates how imposing a duty of care could erode that distinct line to the detriment of the criminal justice system. The plaintiff’s case against the police exclusively concerns police conduct during the investigation and decision to lay a charge, stages in which the police are constitutionally independent and immune to direction from Crown Attorneys or the Attorney General. As I have discussed above, imposing liability in these circumstances could encourage Crown Attorneys to not only refrain from advising the police, but also to veer into impermissible direction of the police. Likewise, imposing liability could encourage the police to impermissibly fetter their discretion by treating legal advice from Crown Attorneys as determinative instead of being merely one factor to consider. The imposition of a duty of care thus “puts at risk the maintenance of the distinct line between the investigative and prosecutorial functions that is essential to the proper administration of justice”: Riley, at para. 147.

[136] In conclusion, if contrary to my conclusion above Crown Attorneys do owe a prima facie duty of care to police in providing legal advice, such a duty is negated by important residual policy considerations.


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