Date: Wed, 1 Feb 2006 16:15:58 -0800

From: Joost Blom

Subject: Young v Bella 2006 SCC 3

Hi, David. After poring over the entrails of Young v. Bella once more, I'm still inclined to give the SCC the benefit of the doubt on this one.

When they use "proximity" I'm inclined to assume they mean first-branch proximity, not second-branch residual policy. Not that a whole lot turns on it. The practical question is whether one can take this case as yet another permutation of the Anns/Kamloops analytical template, and I think the discussion is just too skimpy to say.

Cheers,
Joost

>>> David Cheifetz >>>

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.

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