Date: Mon, 30 Jul 2007 08:49

From: David Cheifetz

Subject: New Duty Case from the SCC - Syl Apps

Dear Neil,

Sorry. I wasn't referring to a conclusion dictated by the Cooper duty-analysis process.

I meant a conclusion dictated by the (Ontario) rules of practice (civil procedure) determining what decisions can be made, and how, made by the court given the type of procedure (motion) that put the issue before the court and what the issue was. It was a preliminary motion to determine whether the cause of action existed at all. The court didn't have, and couldn't, as a matter of procedure, on that motion, have the sort of evidence before it necessary to adequately decide the 2nd stage Cooper questions. The first instance and appellate Ontario decisions didn't hold that the duty of care existed. All they held was that it wasn't plain and obvious that the duty of care didn't exist, and there was no necessary ex hypothesi / a priori reason (ie, in principle reason) why the duty of care couldn't exist. The SCC held there was one in principle.

Does that make my post clearer?

Regards,
David

--------------------------------------------------------------------------------
From: Neil Foster
Sent: July 30, 2007 3:36 AM
Subject: RE: ODG: New Duty Case from the SCC - Syl Apps

Dear David

I hope it's clear that I don't disagree with the result in the case. But I'm not sure that your proposition 2 follows from your proposition 1, unless (which is always possible) I don't understand the analysis process. Given that all the Cooper stages of duty analysis are just that, questions about duty, then it seems to be that an analysis which reaches stage 2 can still conclude that the result precludes any need to go to trial on the factual issues, and is a one-size-fits-all proposition.

Or does the SCC require a factual analysis to determine the duty of care issue if it reaches stage 2?

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