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 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 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.

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.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

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