Date: Mon, 30 Jul 2007 22:57

From: Lewis Klar

Subject: New Duty Case from the SCC - Syl Apps

The analytical difficulty with Syl Apps and virtually all statutory duty/proximity cases since Cooper is that courts are looking for "proximity" within statutory provisions. In my opinion, proximity comes from relationships. It is created through the interaction between parties. It is not found in statutory provisions. While a statute can impose responsibilities and give powers to individual actors, it is only through the interactions between parties which flow from their statutory responsibilities, that proximate relationships can be created. I think that the major analytical flaw in most if not all of the statutory duty cases, is that the courts are neglecting the actual relationships and interactions which led to the plaintiff's losses, in order to determine whether there is proximity between the parties, and focusing merely on the statutory responsibilities of the defendants. The result of this narrow focus is to inevitably come to the conclusion that statutory responsibilities did not by themselves create proximate relationships. Thus plaintiffs continue to lose their cases. I intend to try to make this point one more time in a case comment on Syl Apps. At some point in time the courts might realize that pre-Cooper many plaintiffs were winning, and post-Cooper virtually no plaintiffs are winning. They might ask themselves why this is so and hopefully realize that their approach is making it inevitably so. I think the Supreme Court is unlikely to say that its approach in Cooper to look for proximity within the statute was a wrong one, so I do not know how Canadian courts will get out of the hole that they are presently in. Maybe some lower court will be bold enough to question the search for proximity within statutes, and nudge the other courts back on track.

Lewis Klar

>>> 7/30/2007 2:08 AM >>>

You're right, of course, that a court could still decide that a duty of care didn't exist after the Cooper 2nd stage analysis. But the evidence is going to be different. And, there will be some "is it better" / "ought" questions. And, of course, the question that is answered could end up being only: is the duty of care taken away in this particular case, not the general case. That last twist is clearly what the SCC did not want to permit.

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