Despite the recognition in some recent judgments that "proximity" is about actual relationships and not implied legislative intent in a jurisdiction which does not recognize a tort of breach of statutory duty, the Supreme Court continues, in this latest judgment, to insist that where statutory bodies are concerned, proximity must be found in the statute.

 

Two paragraphs in Elder Advocates in particular frustrate me.

 

In para. 72 the Court says:

 

"In the absence of a statutory duty, the fact that Alberta may have audited, supervised, monitored and generally administered the accommodation fees objected to does not create sufficient proximity to impose a prima facie duty of care."

 

Why is this?  What does the existence or absence of a statutory duty have to do with whether the government's conduct was sufficient to create proximity? It may very well be  that the government's alleged failures did not bring it into a relationship of proximity with the class. In fact, I agree that they did not. But this is not because there was no statutory duty relating to these acts. It is because these alleged acts were insufficient to create proximity.

 

  In para 74, the Court says this:

 

"Where the defendant is a public body, inferring a private duty of care from statutory duties may be difficult and must respect the particular constitutional role of those institutions.."

 

What is that about? How can a Court which has explicitly rejected a tort of breach of statutory duty because it rejected the idea of inferring private duties from statutes, say that?

 

I give up.

 

Lewis

>>> "Lionel Smith, Prof." <lionel.smith@mcgill.ca> 5/12/2011 10:13 AM >>>
A brief but important judgment of the Supreme Court of Canada was released
today:

Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24
http://scc.lexum.org/en/2011/2011scc24/2011scc24.html

Among other things, the court restates the test for the finding of a
fiduciary obligation, confirming that vulnerability alone is never enough
and in general expressing scepticism about the appropriateness of finding
that such a duty is owed by the Crown. A duty of care is also rejected. A
claim for unjust enrichment was allowed to go to trial, with the rejection
of an argument by the Crown in right of Alberta that the Kingstreet case
decided that unjust enrichment claims could not be brought against the
Crown:

"91.    In my view, Kingstreet stands for the proposition that public law
remedies, rather than unjust enrichment, are the proper route for claims
relating restitution of taxes levied under an ultra vires statute, on the
ground that the framework of unjust enrichment is ill-suited to dealing with
issues raised by a claim that a measure is ultra vires.  However, Kingstreet
leaves open the possibility of suing for unjust enrichment in other
circumstances.  The claim pleaded in this case is not for taxes paid under
an ultra vires statute.  It is not therefore precluded by this Court¹s
decisions in Kingstreet."

Lionel