Date: Tue, 31 Jan 2006 20:34:03 -0800

From: Joost Blom

Subject: Young v Bella 2006 SCC 3

I have to agree with David on the court's refusal to apply the "cap" on non-pecuniary damages. The most persuasive rationale for not applying it to libel cases, as Hill decided, is that libel damages are most often wholly non-pecuniary in nature and are meant to cover more than just pain and suffering and mental distress. But Young v. Bella was characterized as an economic loss case. The plaintiff was awarded just over $400,000 for that loss. It seems a bit much to add to this a non-pecuniary damage award of $430,000 when, in Ter Neuzen v. Korn, a woman who had been rendered HIV positive was held entitled to no more than the "cap". It's true, as the court says at para. 65, that no systemic crisis is going to happen if we allow "uncapped" damage awards to people who have lost career opportunities at the hands of their negligent professors. But I don't see how that makes it right to say that mental suffering in relation to an economic loss can be valued higher than suffering as a result of catastrophic personal injury.

On the question of what Young v Bella does with Cooper v Hobart, I'm not as sure as David that the court got the two (re-defined) limbs of the Anns/Kamloops test mixed up. True, they could be clearer about it, but they do seem to analyze proximity (first limb) as a distinct element from residual policy considerations (second limb). As I read the judgment, the only residual policy consideration they discuss is the statutory defence in s. 38(6) of the Child Welfare Act. When they talk about proximity arising from the "broader relationship between the professors at Memorial University and their students" (para. 31), they seem to be referring to the first limb, putting forward the breadth of that proximity as an answer to the narrow statutory defence. What does surprise me, though, is how perfunctory the duty analysis is. Is it really that obvious that professors must be under a legal duty to take reasonable care not to harm inadvertently their students' financial prospects? Is such an obligation necessarily implied in the contract between the student and the university? If it's not part of the contract, should it be a duty in tort? (Maybe it's just my self-interest talking.)

Joost

>>> David Cheifetz >>>

Young is another example of an unusual SCC analysis.

Young sustained psychiatric injury, but not physical injury, as a result of the defendant's negligence. She was fully compensated for her pecuniary losses. She also received an award for her non-pecuniary general damages. The amount, $439,000 was greater than cap - probably about $250-275K then though I didn't check. Nonetheless, the SCC held that the cap did not apply.

In my view, it's explanation why, in para 65 and 66, does not make sense. The only difference between Young's case and "ordinary" catastrophic injury cases is that she did not suffer a "physical" injury due to the defendants' negligence (with or without psychiatric injury), she sustained only psychiatric injury. So what? If we apply Young for what it logically means, it stands for damages proposition that the a jury award can exceed the cap so long as the amount of the excess is not so great as to shock the conscience of the court.

Young, until it's overruled or limited, means it's lawyers' negligence, in Canada, for any lawyer to sue personal injury claims if a jury is allowed under applicable provincial law.

The duty of care discussion commencing in Young at para 28-32 reads like a retreat from Cooper v Hobart's refinement of the analysis stage analysis. The factors the SCC mentions in paras 29-32 which arise out of the professor-student relationship - as emphasized in para 31 and so, in the Cooper framework, are to be considered at the 1st stage of whether to recognize the prima facie duty of care. They're not the 2nd stage issues touching on "the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally". Who cares if the university argued them as 2nd stage policy issues? The SCC is supposed to get the law right.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>