Date: Wed, 1 Feb 2006 08:13:28 -0500

From: David Cheifetz

Subject: Young v Bella 2006 SCC 3

Joost,

You're certainly right that part of the problem is the too perfunctory analysis in Young.

Still, I think you're giving paras 29-32 of Young too generous a reading. (I'd have written liberal but maybe we shouldn't say Liberal, in Canada, for a while.) It seems that the university and the professors treated the Child Welfare Act as a 2nd stage consideration, not a first stage, and the SCC was quite content to leave it at that. It certainly didn't suggest otherwise. The SCC wrote, in Young, at para. 29 that the university and professors "assert that the duty of care in this case is negated for policy reasons under the second branch of the test." The cursory discussion of "policy reasons" that follows in paras 30-32 doesn't contain any suggestion that the panel thought the policy focus was Cooper's restated 2nd limb of the first branch.

I think, if we compare the statements of the two branches of the test at

Young v Bella 2006 SCC 3 at para 30
Cooper v. Hobart, [2001] 3 S.C.R. 537 at para 30
Bow Valley Husky [1997] 3 SCR 1210 at paras 47, 52

that we should conclude the SCC's version in Young is a pre-Cooper version. It's very close to Bow Valley's version.

So, I don't think it's right to suggest the SCC thought it was engaging in any sort of first branch policy analysis. They don't say they were. They don't mention the policy portion of the first branch. They mention only the 2nd branch. Shouldn't we be taking them at their word?

Best,

David

----- Original Message -----
From: "Joost Blom"
Sent: Tuesday, January 31, 2006 11:34 PM
Subject: Re: ODG: 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.)

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