Date: Wed, 1 Feb 2006 08:38:39 -0500

From: David Cheifetz

Subject: Young v Bella 2006 SCC 3

Addendum:

I think the focus of the proximity discussion in Young is defined by the first sentence of para 31 which is "In short, in the present case, proximity was not simply grounded in a misguided report to CPS, but was rooted in the broader relationship between the professors at Memorial University and their students." and that's a 2nd branch statement, not first. I don't think this conclusion is qualified by para 32's "The scope of the s. 38(6) defence is restricted to the making of the CPS report and would not excuse the University and its employees from failure to live up to their broader responsibilities to the appellant as a member of the university community." (my emphasis). However, I concede the ambiguity.

David Cheifetz

----- Original Message -----
From: David Cheifetz
Sent: Wednesday, February 01, 2006 8:13 AM
Subject: Re: ODG: 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?

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