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

Abstract

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.