Date: Mon, 30 Jul 2007 08:21

From: David Cheifetz

Subject: New Duty Case from the SCC - Syl Apps

Dear Neil,

It seems to me that:

1. a decision that the answer was at stage 2 would have meant that the SCC had concluded there could be a prima facie duty of care;

2. would have meant that the SCC had to then dismiss the appeal on the basis that that there couldn't be a one-size fits all rule of no cause of action or yes cause of action, so it would have had to allow the case to go to trial to determine, "on a complete record" if there were overriding residual factors outside of the relationship between the parties;

3. conclusion 2 seems to imply that in some cases there could be a relevant limitation, imposed by some duty the care-giver owes to the child's family, on the scope of what's proper treatment for the child;

4. conclusions 2 and 3 are inconsistent with the first premise that the child's treatment is primary and the care-givers could not be put in a situation where they might have to decide if the scope of their duty to provide proper treatment to the child conflicted with some duty to the family.

We have to assume the SCC saw all of that and weren't prepared to countenance any analysis that would necessarily allow the action to continue.

Simplifying it - it seems to me that if one starts with the premise that proper treatment of the child is paramount, the SCC's decision had to be what it was, in the end result - bearing in mind that by the time the action arrived at the SCC the family had dropped the "bad faith" claim so that the only cause of action against the remaining defendants was in negligence. I'm open to be convinced otherwise, but I just don't see how (doublethink? aside), in practice, we can tell the care-givers both that all decisions have to be made solely from the perspective of what's best for the child and, by the way, if you're negligent in doing that the family can sue you based on a duty you owe to them, not just to the child. It's a fine (in all uses of that word) distinction in theory. In practice? I don't think so.

You'll note I'm ducking the question of the over-all adequacy of the SCC analysis that got us to the end result.

Regards,
David

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From: Neil Foster
Sent: July 30, 2007 2:11 AM
Subject: Re: ODG: 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.

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