Date: Tue, 2 Oct 2007 21:42

From: Jason Neyers

Subject: Breach of Statute in Canada

I'm not sure that at a certain level of generality the issue is not the same: one cannot have a duty without a right. And since as a matter of the private law one does not have a right to the assistance of another, the right must come from the statute. So the issue in the negligence cases is does the statute create such a right to assistance that does not otherwise exist, the same is issue as in Canada Post v G3.

I agree that the Canada Post case does not say that there is a separate tort of statutory breach, rather it says that statutes can create private rights that can be infringed through either intentional or perhaps negligent interference.

Cheers,

Lewis KLAR wrote:

Thanks Jason. Very interesting case.

Two quick points.

I think we have to agree that the issue in this case is very different from that in Cooper and all of the recent public authority liability cases. Those cases were negligence cases which raised the issue of whether a private law duty of care based on proximity could be based on an interpretation of statutory provisions. They were negligence claims. My argument is that proximity and private law duties of care for negligence actions do not arise from statutes. They arise from relationships which are recognized by the common law as proximate relationships. I do not think there is anything in the Post Corp case which disputes this.

Second, this case does stand for the recognition of an independent cause of action for breach of statute - a separate tort, distinct from negligence. I think that Dickson J.'s admonition in Saskatchewan Wheat Pool that courts should not add compensation provisions or liability provisions to quasi-penal statutes still makes good sense. But if we want a breach of statute tort, courts are going to have to develop the jurisprudence to determine when it exists and who can sue because of it. Maybe the SCC will do that in the Holland appeal. Maybe we are now accepting the English law on this matter. We will see.

--  
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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