Dear Robin:

Another way to think about Canadian law is to ask whether (duties in) statutes create correlative rights in individuals to have the government aid them. Sask Wheat Pool is clear authority for the proposition that breach of a statute is evidence of negligence rather than negligence itself but it is very ambiguous about whether statutes create the rights necessary for tort law to operate. One view of the case law between Sask Wheat Pool and Holland is that the Canadian courts have taken the view (in potential violation of Sask Wheat Pool) that statutes do create private law rights to assistance provided that: (1) the recognition of such a right would not unduly hamper any public law duties created by that statute (compare Syl Apps Secure Treatment Centre v BD [2007] SCC 38 (no duty owed to a family since recognition of a duty would conflict with the public duty to further the child’s best interests); Odhavji Estate v Woodhouse (2003) 233 DLR (4th) 193 (claim allowed to go forward on the basis that the recognition of a private right would not undermine the chief’s public law duties); (2) the statute could not be said to have occupied the field (Bhadauria (1981) 124 DLR (3d) 193 (SCC); Frame v Smith (1987) 42 DLR (4th) 81 and (3) presumably, that the harm suffered is within the scope of the harm that the act is designed to protect. This seems to be the case even if the statute in question creates criminal or quasi-criminal penalties for non-compliance (Canada Post Corporation v G3 Worldwide (Canada) Inc 2007 ONCA 348). As Lewis has noted: “It is ironic that English courts, which do recognize the tort of breach of statutory duty, have held that a statute cannot be relied upon to generate common law duty, whereas Canadian courts, which do not recognize the tort of breach of statutory duty, have used statutes to generate common law duties.”

Cheers,

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

Lewis KLAR wrote:

Hi Robin:

This is a topic which I have been doing some work on for the past while. Here in a nutshell are my current conclusions:

First, there is indeed no tort of breach of statutory duty in Canada (Sask Wheat Pool).  That at least in theory remains good law ( see Holland for reaffirmation).

Second, a breach of a statutory duty or negligence in exercising statutory responsibilities can lead to liability, but only as an element of a recognized cause of action - usually negligence but others as well, eg misfeasance in public office, or even an economic tort.

Third, between Sask Wheat Pool  and Cooper (2001) there had been many successful neg claims against public authorities ( eg Kamloops, Just, Swanson etc etc). This is because in the pre-Cooper environment Courts did not focus on "proximity" and duty in these cases. They generally accepted presumptive duty based on foreseeability and argued about the policy/operational dichotomy to limit it.

Fourth, then came Cooper!  Cooper not only added "proximity" in "stage one", but in relation to statutory authorities stated that the "only source of their duty, whether public or private is in the statute".  This was the poison pill for plaintiffs. They had to find proximity and hence duty in the statute. It was an implicit, probably inadvertent, rejection of the spirit of Sask Wheat Pool.

Fifth, since Cooper courts have been trying to interpret statutes to see if the legislature intended proximity  to exist. They rarely find it. The latest clear example of this approach which I consider misguided is the Ont Court of Appeal jgt in River Valley Poultry Farm v Canada.  The court tried to interpret the purpose of the statute, even by looking at the title.

Sixth, I have argued that statutes are the context for relationships to arise, but it is the relationship which either does or does not create proximity. Thus courts should look at what the authorities DID in carrying out their statutory duties, powers or responsibilities to see if it that brought them into a relationship of proximity. Courts are now doing this, but plaintiffs are still failing ( see River Valley where there was a direct relationship, but still no proximity.) Nevertheless it is in my view the correct approach, which is consistent with Sask Wheat Pool and the notion of a common law duty ( See Hill v Hamilton Wentworth)

Seventh, I am now thinking about arguing that Courts might wish to broaden the notion of proximity where public authorities are concerned to reflect their unique responsibilities. Otherwise plaintiffs will continue to fail.  Maybe they should? Or maybe courts have gone too far in immunizing authorities by not finding proximity in statutes and requiring too high threshold of interactions for proximity to arise.

Hope this helps?

Lewis Klar

  

Robin Hansen <robin.hansen@usask.ca> 11/09/09 2:28 PM >>>
        

Greetings,

 

I've come to an impasse in understanding the tort liability of public
authorities under current Canadian law for breach of statutory duty, so I'm
turning to the ODG... Thoughts, citations, etc. (either to me or the list)
would be sincerely appreciated.

 

I'm wondering to what extent Holland v. Saskatchewan (SCC 2008) really
immunizes public authorities from tort actions in relation to their
statutory duties (i.e., breach or non-fulfillment)? Isn't full immunity
arguably an overreach from R v. Saskatchewan (SCC 1980)? The latter as I
understand it held that there was no implied provision in statute which
permitted a cause of action in tort to arise from a breach of statute alone.
To me, this means that a breach of statute is not sufficient basis for a
tort claim. Other elements required under common law must be present for a
duty of care to be found.

 

But it seems (and I may be mistaken) that under Holland, negligence claims
in relation to breaches of statutory duties are simply not permitted, full
stop (para. 9). Does this mean that the only legal remedy available when
public authorities act in excess of their statutory duty is judicial review
for invalidity? What about the scenario when there is a failure by a public
body to fulfill its statutory duty? Is there no possibility that this
failure may fit within a claim in negligence? (Albeit one that needs to
fulfill additional common law elements of the tort, since it cannot be based
on breach of statute alone?)

 

To me it seems ironic that public authority actions in relation to statutory
powers would be more exposed to tort liability that public authority actions
in relation to statutory duties. Shouldn't a higher standard of conduct be
required with respect to the fulfillment of duties rather than actions taken
subject to discretionary powers? On the other hand, I suppose that
separation of powers concerns may be relevant here.

 

Thanks very much.

 

Best regards,

 

Robin Hansen

 

The Queen (Can.) v. Saskatchewan Wheat Pool [1983] 1 SCR 205
http://scc.lexum.umontreal.ca/en/1983/1983scr1-205/1983scr1-205.html

Holland v. Saskatchewan [2008] S.C.J. No. 43,
http://scc.lexum.umontreal.ca/en/2008/2008scc42/2008scc42.html 

 

See, e.g., Attis v. Canada (Minister of Health) [2008] O.J. No. 3766 Ontario
Court of Appeal:

 

38     Whether a particular case falls within a recognized category is not
always straightforward. Cooper, at para. 36, lists recognized categories of
care. Certain categories seem to fit the circumstances of this case, at
least when viewed broadly. For example, this case presents allegations of
governmental operational negligence, physical harm to the plaintiffs, and a
breach of a duty to warn. These relationships are listed in Cooper as
recognized categories. On the other hand, a category of government immunity
from liability for a breach of a statutory duty was also recognized in
Holland v. Saskatchewan, [2008] S.C.J. No. 43 and The Queen in Right of
Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.

 

Robin F. Hansen

Assistant Professor, College of Law

University of Saskatchewan

Saskatoon, Canada