Date: Sat, 14 Jun 2008 06:08

From: David Cheifetz

Subject: Novel Duty of Care?

There's the possibility of using the second stage as a control on recoverable damages post duty, if we take Anns/Kamloops to mean what Wilson J wrote in 2(c) - the usage was "damages" not "damage" - even though, as you reminded me, the clause hasn't been used that way (yet?).

David  

----- Original Message ----  
From: Russell Brown   
To: Lewis KLAR  
Cc: Tsachi Keren-Paz
Sent: Friday, June 13, 2008 2:01:49 PM 
Subject: Re: Novel Duty of Care?

Dear Tsachi,

I agree with Lewis - the plaintiffs were clearly going after the parents' homeowner insurer. As to the policy considerations, there was a fair bit of commentary immediately after Cooper v. Hobart was decided to the effect that all the policy heavy-lifting was going to eventually occur at stage 1, and that stage 2 would probably just fall into disuse. (In fact, this was suggested by the nature of the policy considerations considered at stage 1 in Cooper itself). I agree that the question of whether we should even look at "policy" considerations (or whether we can separate policy from non-policy considerations) are probably not easily resolved, at least over a few emails. Irrespective, however, of where you or I stand on that particular divide, I agree with your point about "proximity" (as conceived at the SCC at least) swallowing everything up, although perhaps we should have seen it coming (see McLachlin J.'s description of "proximity" in CNR v. Norsk).

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