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 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.

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.

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 The Alchemy of Equality Rights

2021 ◽  
Vol 30 (2) ◽  
pp. 53-84
Author(s):  
Joshua Sealy-Harrington
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Precise Definition ◽  
Canadian Charter ◽  
Equality Rights ◽  
The Supreme Court ◽  
Legal Test ◽  
Elusive Concept

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms1 recognized equality as “an elusive concept” that “lacks precise definition.”2 Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics. 1 s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164, 56 DLR (4th) 1 [Andrews].

scholarly journals Non-Positivist ‘Higher Norms’ and ‘Formal’ Positivism: Interpretation of the Ethiopian Criminal Law

2020 ◽  
Vol 14 (1) ◽  
pp. 85-118
Author(s):  
Simeneh Kiros Assefa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Criminal Law ◽  
Common Good ◽  
Legal Theory ◽  
Fundamental Rights ◽  
The Common Good ◽  
The Supreme Court ◽  
The Common

The criminal law is adopted as a means of achieving the common good; it is interpreted and applied by the court. The judge chooses the type of legal theory and method to employ in the interpretation and application of the criminal law. Such theories may be acquired from higher norms or from the decision of the Supreme Court. Because such choice of theory and method determines the outcome of the case, the judge is also expected to be guided by the doctrines in criminal law inspired by the values of rule of law and respect for fundamental rights, enshrined in the Constitution. This article examines how courts harmonise the application of the positive criminal law with the non-positivist theories of higher norms. After reviewing various criminal rules and their judicial application, it finds that the court applies the criminal law as it is written in disregard of the non-positivist theories of higher norms, at times in contradiction to the basic doctrines of the criminal law itself.

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.

The Courts

2007 ◽  
Vol 40 (1) ◽  
pp. 249-250
Author(s):  
Ran Hirschl
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Judicial Review ◽  
Political Institutions ◽  
Supreme Court Of Canada ◽  
Court System ◽  
University Of British Columbia ◽  
The Supreme Court

The Courts, Ian Greene, The Canadian Democratic Audit Series; Vancouver: University of British Columbia Press, 2006, pp. xvii, 182.This book is another welcome addition to the Canadian Democratic Audit Series. It sets out to assess the democratic credentials of Canada's judiciary—a most significant branch of government in post-1982 Canada. The book's approach is refreshing in several respects. Instead of the traditional focus on the well-rehearsed debate over the questionable democratic credentials of judicial review, the book attempts to evaluate the adequacy of the Canadian court system in relation to three basic tenets of democracy: participation, inclusiveness, and responsiveness. Unlike most accounts of Canadian political institutions, it pays due attention to elements of the court system beyond the Supreme Court of Canada. In so doing, Greene is able to assess more accurately whether the Canadian judiciary as a whole is living up to that set of reasonable democratic expectations.

scholarly journals BC Teachers’ Federation v British Columbia: The Supreme Court Takes a School Holiday

2018 ◽  
Vol 73 (3) ◽  
pp. 603-616
Author(s):  
Eric Tucker
Keyword(s):  
British Columbia ◽  
Political Economy ◽  
Public Sector ◽  
Supreme Court ◽  
Industrial Relations ◽  
Supreme Court Of Canada ◽  
Labour Rights ◽  
The Supreme Court ◽  
Public Sector Workers

Summary Constitutional labour rights in Canada now protect workers’ freedom to organize and bargain collectively and to strike. These associational freedoms are especially important for public sector workers, the most frequent targets of legislation limiting their freedoms. However, the Supreme Court of Canada judgments recognizing these rights and freedoms have also introduced important ambiguities about their foundation, scope and level of protection. This brief comment locates these ambiguities in the context of Canada’s political economy and industrial relations regime, which are beset by contradiction and conflict. It then explores the origins and development of the jurisprudential ambiguities in constitutional labour rights through a survey of recent Supreme Court of Canada’s labour rights judgments, including most recently British Columbia Teachers’ Federation and British Columbia (2016).

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