scholarly journals R. v. Imperial Tobacco Ltd.: More Restrictions on Public Authority Tort Liability

2012 ◽  
Vol 50 (1) ◽  
pp. 157
Author(s):  
Lewis N. Klar, Q.C.
Keyword(s):  
Supreme Court ◽  
Public Authority ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Tort Liability ◽  
Public Authorities ◽  
The Supreme Court ◽  
Regulatory Functions

Since 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

scholarly journals Settling the Fisheries: Pre-Confederation Crown Policy in Upper Canada and the Supreme Court's decisions in R. v. NIKAL and LEWIS

2014 ◽  
Vol 31 (1) ◽  
pp. 87-172
Author(s):  
Peggy J. Blair
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Aboriginal Rights ◽  
Fishing Rights ◽  
The Supreme Court ◽  
The Subject

Although a casual reading of the Supreme Court of Canada's decisions in R. v. Nikal and R. v. Lewis might suggest otherwise, this article will argue that Court's decisions in two recent British Columbia aboriginal fishing cases do not apply in Ontario. In doing so, it will be shown that the Supreme Court of Canada relied on evidence of historic Crown policies towards aboriginal fishing rights in Upper Canada in the absence of appropriate context as to when, how and why those policies evolved. As a result, the Court wrongly concluded that fisheries could not be the subject of exclusive aboriginal rights.

scholarly journals L'effectivité des décisions de justice en droit public interne [constitutionnel]

2005 ◽  
Vol 26 (4) ◽  
pp. 995-1003
Author(s):  
Louis-Philippe Pigeon
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
Canadian Charter ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
High Degree ◽  
Political Character ◽  
Limited Scope

In practice, no question ever arises respecting the effectiveness of judicial decisions in matters of public law. Whether or not a judgment is technically executory is of no importance. There is such a high degree of respect for the decisions of the courts, specially those of the Supreme Court of Canada, that public authorities practically never feel free to seek a way out of compliance with a judicial pronouncement. Remedial powers of the courts are entrenched under the Canadian Charter of Rights and Freedoms and the Constitution is declared to be the supreme law of Canada. There is thus very limited scope for governmental action in defiance of court orders. The only specific provision for such action appears to be a section of the Extradition Act authorizing the Minister of Justice to refuse to surrender a fugitive if he determines that the latter's offence is of a political character.

scholarly journals Do We Really Need the Anns Test for Duty of Care in Negligence?

2016 ◽  
Author(s):  
Joost Blom
Keyword(s):  
Supreme Court ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Continued Use ◽  
Negligence Law

Since its formal adoption in 1984, the Supreme Court of Canada has applied the Anns test31 times. This article uses those decisions to assess the test’s value in negligence law. Basedon that analysis, the Anns test has two disadvantages: (1) it treats dissimilar duty questionsas if they were alike; and (2) it can divert courts into an Anns analysis when a more directapproach to duty of care would be better. However, despite its disadvantages, three decadesof continued use by the Supreme Court makes it unlikely that the Anns test will beabandoned anytime soon.

scholarly journals Once More Unto the Breach: James v. British Columbia and Problems with the Duty of Care in Canadian Tort Law

2008 ◽  
Author(s):  
Russell Brown ◽  
Shannon Brochu
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Legal Theory ◽  
Prima Facie ◽  
Duty Of Care ◽  
Public Authorities ◽  
Trial Courts ◽  
The Supreme Court ◽  
Borough Council ◽  
Negligence Law

In the wake of the Supreme Court of Canada's reconfiguration in Cooper v. Hobart of the test for establishing a duty of care in negligence law, commentators predicted and have since described a more conservative approach to imposing liability in the law of negligence. In general, a phenomenon of retrenchment seems indisputable. Both summarily and after trial, courts have dismissed claims that might arguably have passed muster under the more relaxed "foreseeability" test for a prima facie duty of care first articulated in Anns v. Merton London Borough Council and later endorsed in Kamloops (City of) v. Nielsen. Even the Supreme Court of Canada's own pronouncements confirm Cooper's constrictive effect on negligence liability. Such developments have led Allen Linden and Bruce Feldthusen to lament that Cooper has "largely halted the expansion of negligence law in Canada." There are, however, exceptions to this litany of woe for plaintiffs. In this comment, we propose to examine one of the more remarkable and, in our view, unfortunate examples - the pronouncement of the British Columbia Court of Appeal in James v. British Columbia, certifying the class proceeding brought by an unemployed sawmill worker against the Minister of Forests. As we will demonstrate, James instantiates the very mischief that Cooper was intended to overcome in failing to give appropriate regard to the requisite "proximity" between a plaintiff's loss and a statutory public authority's impugned conduct. We will also consider how James implicates Cooper's prevailing conception of duty of care in Canadian Negligence law, both generally and in cases against statutory public authorities. Specifically, we will argue that the outcome in James affirms earlier arguments that Cooper's duty analysis is conceptually flawed, inasmuch as it conflates what is a fundamentally juridicial question with non-juridical "policy" concerns. As such, we will be concerned with the universal requirement which any truly legal theory of tort liability absolutely requires as a condition for an award of damages.

scholarly journals Restitution of Unlawfully Levied Taxes: Survey and Comparative Analysis of Developments in Canada, Australia, and England

1969 ◽  
pp. 960 ◽  
Author(s):  
Frédéric Bachand
Keyword(s):  
Comparative Analysis ◽  
Supreme Court ◽  
Common Law ◽  
General Rule ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
The Past ◽  
The Supreme Court ◽  
The Common

The common law traditionally has not been sympathetic to taxpayers wishing to recover unlawfully levied taxes from public authorities. Because a mistake of law did not, as a general rule and in itself, give rise to a right to restitution, and because courts refused to find that the mere fact that monies had been demanded by public authorities amounted to compulsion, taxpayers were often left without a remedy. Fortunately, important judicial developments have occurred in Canada, Australia, and England in the past decade. The demise of the infamous mistake of law rule and the recognition in England of the Woolwich principle have facilitated the recovery of unlawfully levied taxes. Yet, these developments have revealed profound differences as to which defences should be made available to public authorities. The "fiscal chaos" and "passing on" defences proposed by three Justices of the Supreme Court of Canada in the Air Canada case have not been well received in Australia and England. This article traces the evolution of the traditional common law approach to the problem of unlawfully levied taxes, offers a survey of the judicial developments in this area since the past decade and proposes a comparative analysis of the approaches adopted in each jurisdiction.

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