Date: Mon, 30 Jul 2007 07:10

From: Neil Foster

Subject: New Duty Case from the SCC

Dear Jason

Thanks for this. Nice to see the SCC are aware of the Australian HC decision in Sullivan v Moody which is to a similar effect.

A couple of questions about the analysis, however.

(1) Abella J at [25] defines "reasonable foreseeability" by referring first to a sentence from Lord Atkin in Donoghue v Stevenson the topic of which is my obligation to "take reasonable care". But since that sentence includes the words "reasonably foresee" then it cannot be a definition of that concept. I mention this because then at para [35] we are told that the question "whether it was reasonably foreseeable" that the actions of the defendants would harm the family is to be resolved by asking whether they "ought to have taken reasonable care ..."

Unless I am missing something this is the wrong question. Surely the question of reasonable foreseeability at the first stage of the Cooper test as applied by the SCC must focus on the issue of whether or not a reasonable person could foresee harm as a real possibility, and not at that stage start to go into the "ought" question. Understandable, then, that we are told at para [36] the parties all accepted that foreseeability was not disputed. It just seems to me that there is a "fuzzying" of foreseeability in para [35] which might be bad in the future.

(2) Secondly, as explained by Abella J at [32], the Cooper test involves a preliminary "proximity" examination where "policy" factors are considered which are meant to "relate to factors arising from the particular relationship between the plaintiff and the defendant". It is at stage 2 of the consideration, the "residual policy concerns" stage, that "the effect of recognising a duty of care on other legal obligations, the legal system and society more generally" come up.

Hence I would have expected that considerations relating to potential conflict between the duty of the defendants to the family members, and the duty to the child in care (who is not a party to the litigation), would have been resolved at stage 2 rather than the "proximity" analysis of stage 1. Yet Abella J seems to treat these conflict and coherence issues as a question of stage 1 "proximity" - see [37], [59], [62].

I realise that this is a bit pedantic, and that if the issues are considered in the end then some conceptual "blending" (see [33]) is not that important. But it does seem to undercut the workability of the Cooper approach.

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 28/07/07 1:36 >>>

TORTS: DUTY OF CARE

Syl Apps Secure Treatment Centre v. B.D. (Ont. C.A., January 20, 2006) (31404)

“In January 1995, R.D. was apprehended by the Children's Aid Society and placed in a foster home. She was 14 years old and had written a story at her school which alleged that her parents had physically and sexually abused her. After a police investigation, no criminal charges were laid. R.D. was found to be a child in need of protection and temporary wardship was ordered. After being placed in foster care and subsequently transferred to several psychiatric facilities, she was sent to a treatment centre where B was her social worker/case coordinator. R.D., with her consent, was made a permanent ward of the Crown in October 1996. Her parents, grandmother, and three siblings issued a statement of claim seeking $40,000,000 in damages. The family’s allegations revolved around their assertion that R.D. was treated by the treatment centre and B as if her parents had physically and sexually abused her, that this was negligent conduct, and that the negligence caused R.D. not to return to her family, thereby depriving the family of a relationship with her. A motion was filed under Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure to have the statement of claim struck out on the ground that it disclosed no reasonable cause of action. The motion was granted, but the Court of Appeal set aside the motions judge’s decision.”

The Supreme Court of Canada held (unanimously) the appeal is allowed the action is dismissed with costs.

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