I don’t think it is that dire David. What it stands for is that this case does not undergo an Anns analysis because it is an existing duty. I have exhaustively reviewed jurisprudence in Canada, and surprise surprise, this is the first time an appellate court has said there is such a duty ( as opposed to assume there is one without stating that), at least in reported decisions.

Para 18 was a bit of a surprise to me since I didn’t ask for any sweeping statements – just the one I ended up with.

The other interesting thing is that, apart from Mustapha, the SCC had not made a clear statement that the Anns analysis was not to be done, as opposed to “not necessary”, in a case where there is an existing or analogous cause of action; I think the OCA has finally stated that it is not to be done, period. (See for eg the court’s analysis in Commiso which adopts the trial judge, who does a sort of Anns analysis and decides that he has to move on to the policy analysis. He does and determines that there was no policy against the cause of action. It was a bit confused in the past)

On the duty issue, I argued that Fullowka has thrown cold water on the use of conflicting duties as a policy reason to avoid an otherwise proximate relationship giving rise to a duty, in cases of litigation between private parties. If the court had been inclined to undertake a Cooper-Anns analysis, then I argued that Paxton and Bovingdon would have been differently decided had the courts had the benefit of Fullowka. So, if I asked for a sweeping statement, that would be it, but only if I lost on the Cooper-Anns argument. Which, of course, I did not.

So you are right about one thing, I will indeed get costs.