There has never been a robust debate about unique public duties in Canada, certainly nothing to ..... R v Imperial Tobacco Canada, 2011 SCC 42, 3 SCR 45.
10 Reasons to Reject Unique Public Duties of Care in Negligence1 ©Professor Bruce Feldthusen* University of Ottawa 2017-05-15
In Michael v The Chief Constable of South Wales Police the UKSC decided a critically important negligence case dealing with public defendants generally and with police defendants in particular.2 The UKSC resolved a difference of judicial opinion by holding that the courts may not impose unique negligence duties of care upon public defendants; that is, a public defendant will not owe a duty of care to another unless a similarly situated private defendant would owe a duty of care under existing basis negligence law.3 This has been referred to by McBride as the “Diceyean” approach.4 Governments should be subject to the same law as private citizens.5 The competing approach which supports unique public duties on policy grounds is usually attributed to the decision in Anns v London Borough of Merton.6 It was openly rejected in Michael, There has never been a robust debate about unique public duties in Canada, certainly nothing to match the in-depth review in Michael. The Supreme Court has recognized at least five unique public duties, but has never acknowledged doing so. One, Odhavji v Woodhouse, is unhelpful for present purposes. The court imposed a duty of care in negligence on the Chief of Police to insure that officers cooperate in a proper SIU investigation, as required by statute, when a •
1
This is a draft of an article to be published in 2018 by LexisNexis and posted here with the publisher’s permission. If citing, please refer to it as such.
This article is based on an oral presentation at the Canadian Law Obligations Conference in Vancouver BC on, May 5, 2017. More detailed discussion of many of the points raised herein may be found in Bruce Feldthusen, “Bungled Police Emergency Calls and the Problems with Unique Duties of Care” (2017) 68 UNBLJ ; Feldthusen, “Unique Public Duties of Care: Judicial Activism in the Supreme Court of Canada” (2016), 53 Alta L Rev 1; and “Tilting the Balance of Power between the Courts and Government Through the Common Law of Negligence”, Ottawa Faculty of Law Working Paper No. 2015-31. 2 [2015] UKSC 2. The facts in Michael are considered infra at 3 The requirement is “similar” or “analogous.” For example, the novel duty of care owed by investigating police officers to criminal suspects recognized in Hill v Hamilton, [1976] 1 SCR 53, may appear to be a unique public duty, but it is not. The Hill duty is entirely consistent with the principle in private party negligence law that imposes affirmative obligations in special relationships of control. 4 Nicholas McBride, “Michael v Chief Constable of South Wales Police” (University of Cambridge Legal Studies Research Paper Series, Paper No 21, 2015) at 5 [Michael Comment], available at htpp://ssrn.com/abstract=2565068. See also Nicholas McBride, “Michael v Chief Constable of South Wales Police” (2016) 32 Professional Negligence 14 at 15, n13 where the author has now renamed it the “uniform approach”. [Professional Negligence]. 5 Peter Hogg, Patrick Monahan & Wade Wright, Liability of The Crown, 4th ed (Toronto: Carswell, 2011) at 218-9 citing Dicey, The Law of the Constitution 10th ed (London, McMillan, 1959) 193. 6 Anns v Merton London Borough Council, [1978] AC 728.
suspect is killed by an officer.7 It held that this duty was owed to members of the deceased’s family who were allowed to continue their action seeking damages for psychiatric harm. The only general principle I can extract from this holding is that a sympathetic case always has a “punchers chance” in a negligence action, even at the highest level of court. This article will focus on the other four unique public duties. Each is a specific manifestation of a meta-principle that I call the Good Public Samaritan liability principle. The principle states that once a public defendant begins to exercise a discretionary power, it then comes under a duty to exercise the power with reasonable care. Were it not for the Good Public Samaritan principle, unique public duties of care would probably not exist in Canadian law. I will argue later that the Good Public Samaritan principle is badly flawed and that the courts ought not to recognize unique public duties.8 The Supreme Court established its first unique public duty in Schacht v O’Rourke.9 The court held that investigating police officers owed a duty to highway users to remain at the scene of an automobile accident until dangers at the scene had been removed or addressed by another government department. Interestingly, this decision was rendered before the decision in Anns.10 It was a 3-2 decision with the dissent expressing an objection to the majority’s unique public duty.11 This is as close as the Supreme Court has ever come to openly discussing the imposition unique public duties. The majority did not address this objection. The second unique public duty is the duty imposed on a municipality and owed to a home owner when the municipality decides to exercise its powers to inspect housing. Such a municipality must conduct the inspection with reasonable care. This is not a reliance-based duty. It may exist in favour of a plaintiff who had no knowledge whatsoever of the inspection program when the building was purchased. The origin of this duty in Canada is usually traced to the decision in Kamloops v Nielsen.12 Although the majority in Kamloops was clearly charmed by the Anns decision which had earlier established such an inspection duty in the UK, there was no inadequate inspection in Kamloops. Kamloops actually turned “improper” decision making. The municipality had failed to enforce a by-law against one its own aldermen. Wilson J speaking for the majority actually expressed concern about creating a unique public duty pertaining to pure economic loss, but did not mention this concern in regard to the basic duty to enforce bylaws. This makes sense because there is nothing inappropriate about a court sanctioning impropriety or bad faith on the part of a public actor. The dissent found no impropriety and recognized no other
7
Odhavji Estate v Woodhouse, 2003 SCC 69. This decision is better known for its discussion of misfeasance in public office. I intend no criticism of that aspect of the case. 8 This is discussed infra 9 Schacht v O’Rourke, [1976] 1 SCR 53. 10 The decision in Dutton v. Bognor Regis Urban District Council, [1972] 1 QB 373 (CA), an earlier Good Public Samaritan case, influenced the majority. See Schacht, ibid at 69. The dissent expressed doubt that Dutton had been correctly decided. See at 86. 11 Schacht, supra note 9 at 87. 12 Kamloops (City) v Nielsen, [1984] 2 SCR 2.
duty. Regardless, there is no question today that the housing inspection duty is recognized in Canada.13 The third unique public duty was established in Just v British Columbia.14 The court held that a provincial highway maintenance crew owed a duty to drivers to conduct roadside inspections with due care. Several passages in Just suggest that Cory J, speaking for the majority, did not support unique public duties. Indeed, he may not have realized that he was creating one.15 The fourth unique public duty was established in Fullowka v Pinkerton’s of Canada Ltd.16 The court held that a provincial safety body owed a duty of care to miners who were injured and killed, and to their families, when a striking worker placed dynamite in the mine during a violent labour stoppage.17 Although the agency was often on site to investigate the explosion, there was no operative specific reliance on the agency by the employees. The court did not mention the matter of unique public duties of care. Four unique public duties is not a large number, although Fullowka in particular opens the way for many more if the courts are so-inclined. Arguably these duties represent “good” policy decisions. Equally arguably, they are unnecessary and inefficient. Either way, we are not, at least not yet, dealing with a major practical problem, nor a constitutional crisis. Nevertheless, I will now offer 10 reasons why I believe Canada should adopt the Michael approach and refuse to recognize any more unique public duties of care. I will argue that unique public duties are unnecessary, problematic, and in violation of the established constitutional division of power between the courts and the legislatures in Canada.
Ten Reasons why the Canadian Courts should not create Unique Public Duties of Care 1. Canadians are Diceyeans: It is often tempting to want liability imposed on large, powerful and impersonal actors such as governments. It is easy to forget who will ultimately foot the bill. However, the reality is broader than that of unique liabilities. We are really talking about conceptualizing government and private parties as separate and distinct in private law. Unique liabilities create a supportive atmosphere for unique immunities, excuses and defences for public actors. Some unique protection for public actors may be necessary,18 but such special treatment is rarely embraced by private citizens. This has not been our tradition. Our tradition has been that public actors should
13
Rothfield v. Manolakos, [1989] 2 SCR 1259 at 1266; and Ingles v. Tutkaluk Construction , [2000] 1 SCR 298 at paras 17-18. Anns itself has been overruled in the UK. The two-step duty framework was rejected in Caparo Industries v Dickman, [1990] 2 AC 605. Liability for defective structures was rejected in Murphy v Brentwood District Council, [1991] 1 AC 398. 14 Just v British Columbia, [1989] 2 SCR 1228. 15 Ibid at 1239, and 1244. 16 2010 SCC 5. 17 The duty was established in obiter because the defendant was held to have met the standard of reasonable care. 18 See e.g. Ernst v. Alberta Energy Regulator, 2017 SCC 1.
be “under the same (emphasis added) law that applies to private citizens”.19 This is a fundamental political principle. 2. Historically, Canadian courts did not support unique public duties. Under the Crown Liability legislation by which the Crown surrendered it historical immunity from liability in tort the federal Crown, and the Crown in 8 of the 9 common law provinces consented only to being held vicariously liable for torts committed by their servants or agents.20 They did not accept to be held liable for “peculiarly governmental activity” where there exists “no clear private analogue.”21 It is a great mystery how the impact of Crown Liability legislation disappeared from the law of negligence without a whimper from government. There is little or no prospect of reviving it. But this was and remains the position in the legislation. The Supreme Court itself acknowledged the prohibition against unique public duties in the seminal case of Welbridge Holdings v Winnipeg.22 The objection to unique public duties was actually supported in two of the four unique public duty cases under discussion, Kamloops v Nielsen,23 and Just v British Columbia.24 These judicial aversions to unique public duties have never been explicitly overruled, or even criticized. They just simply seemed to disappear. 3. Unique Public Duties Violate another well-established rule of Canadian Law: The Supreme Court has twice held that a court cannot construct a common law duty of care based on the words of a statute alone.25 The four unique public duty cases under discussion here
19
Supra note 5. This historical immunity was constitutional, based on separation of powers, not on tort doctrine. Crown Liability and Proceedings Act, SC 1990, c 8, s 20; amended SC 2001, c 4, s 3(b)(1); Proceedings Against the Crown Act, RSA 2000, c P-25, s 5(1)(a); Proceedings Against the Crown Act, CCSM, c P140, s 4(1)(a) (excluding liability for economic loss) ; Proceedings Against the Crown Act, RSNL 1990, c P-26; NS s 5(1)(a); Proceedings Against the Crown Act, RSNS 1989, c 360, s 5(1)(a); Crown Proceedings Act, RSPEI 1988, c C-32, s4(1)(a); Proceedings Against the Crown Act, RSS 1978, c P-27, s 5(1)(a); and Proceedings Against the Crown Act, RSO 1990, c P27, s 5(1)(a). Canada and all the common law provinces except BC also have a provision substantially identical to s.10 of the federal Act which reads as follows: 20
10. No proceedings lie against the Crown . . . in respect of any act or omission of a servant of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action for liability against that servant or the servant’s personal representative or succession.
BC also accepted direct liability on the part of the Crown. Crown Proceeding Act, RSBC 1996, c 89, as am, S 2(c). The distinction between direct and vicarious liability was rendered meaningless in Swinamer v Nova Scotia (Attorney General), [1994] SCJ No 21, [1994] 1 SCR 445 at para 29. 21 Hogg, supra note 5 at 261 uses these terms and supports this proposition. See also Norman Siebrasse, “Liability of Public Authorities and Duties of Affirmative Action” (2007) 57 UNBLJ 84; and Lewis Klar, “Tort Liability of the Crown: Back to Canada: Saskatchewan Wheat Pool” (2006-2007) 32 Advocates Q 293 at 294. 22 Welbridge Holdings Ltd v Greater Winnipeg, [1971] SCR 957. Welbridge has never been overruled and may be undergoing a modern revival. See 118143 Ontario Inc. (c.o.b. Canamex Promotions) v Mississauga (City), 2016 ONCA 620. 23 Supra note 12 and accompanying text. 24 Supra note 14. 25 R v Saskatchewan Wheat Pool, [1983] 1 SCR 205; Odhavji Estate v Woodhouse, supra note 7. This was also emphasized in Michael, supra note 2. See also Klar, supra note 21; and Klar this volume
all appear to violate that rule, most clearly Schacht v O’Rourke which pre-dated the current prohibition. 4. “General Reliance” is not a recognized or acceptable basis for unique public duties: “General reliance” is sometimes raised in support of unique public duties. General reliance usually means only that citizens expect public authorities to conduct their operations without negligence.26 Assuming that were true, as the Chief Justice has reminded us it remains to justify imposing the cost of the plaintiff’s disappointments on the defendant.27 General reliance is not situation-specific reliance between parties in a closely proximate relationship. It is not based on an assumption of responsibility that produces detrimental reliance. General reliance is overly broad as a justification for unique public duties. Absent a contract or assumption of responsibility it is often incoherent to speak of a “negligent” or “unreasonable benefit”. What does it mean to perform a discretionary municipal house inspection, or highway inspection, with reasonable care? There is no professional standard, contract or representation to set the standard.28 5. Taxes do not purchase specific benefits: It is true that taxes fund government benefits. This point is thought by some to support general reliance as the basis for unique public duties based on the idea that government benefits are not gratuitous benefits at all. This is a fallacy. Absent a specific assumption of responsibility, taxes do not purchase an entitlement to a particular benefit in a manner analogous to payment under a contract. Taxes fund the political process of developing and delivering a mixed package of public benefits. In contrast, some financial levies are specifically dedicated to a particular benefit. For example, this is true of 911 emergency service where I live. A dedicated levy does not support a unique duty of care, however. Rather, it makes it highly likely that the defendant will be held to have
26
See Invercargill City Council v Hamilton, [1994] 3 NZLR 513 (CA); affirmed [1996] 2 WLR 367 (PC). Although general reliance typically arises in public authority negligence actions, it is discussed in both the private and public sectors in Childs v Desormeaux, 2006 SCC 18 at para 40. 27 See Childs, infra at para 25: The law of negligence not only considers the plaintiff’s loss, but explains why it is just and fair to impose the cost of that loss on the particular defendant before the court. The proximity requirement captures this two-sided face of negligence. This is similar to the argument that while it might be reasonable to rely on financial reports prepared by a national accounting firm as having been prepared with due care, that does not justify liability unless the firm did something to intend or induce the reliance. See Stephen R Perry, ‘Protected Interests and Undertakings in the Law of Negligence’ (1992) 42 U of Tor L J 247 at 285; and Bruce Feldthusen, “Hedley Byrne: Misused, then Exiled by the Supreme Court of Canada” in in Kitt Barker, Ross Grantham, and Warren Swain, The Law of Misstatements (Oxford and Portland Oregon:Hart Publishing, 2015) Ch 11 [Hedley Byrne]. 28 Later, I will suggest that professional status, such as medical doctor, may help found a principled distinction within the ordinary common law between public rescue providers and others. Like doctors, recognized public service providers like police or firefighters do develop professional standards for basic services. Infra (in draft at 27). As to the importance of there being a recognized standard of behaviour to justify judicial intervention, see David Cohen, “The Public and Private Law Dimensions of the UFFI Problem” (1984) 8 Can Bus LJ 410 at 421.
assumed responsibility to a caller under the basic principles of negligence law as applied to private parties.29
6. The “Good Public Samaritan” liability principle is objectionable in policy and principle As noted earlier, the four unique public duties of care under consideration in this are article are each specific manifestations of the Good Public Samaritan liability principle.30 The principle states that once a public defendant begins to exercise a discretionary power, it then comes under a duty to exercise the power with reasonable care. Were it not for the Good Public Samaritan principle, unique public duties of care would probably not exist in Canadian law. The duty imposed on municipalities that decide to exercise their discretionary statutory power to operate a residential home inspection program is a clear example of the Good Public Samaritan principle.31 Once the municipality implements the program, the Canadian courts require that the inspections be performed with reasonable care. This is a unique public duty. The Good Samaritan liability principle has never been established in private party negligence law.32 AThere is nothing to recommend it in public liability law either. The Good Public Samaritan liability principle became prominent after a simple, unsupported pronouncement by Lord Wilberforce in Anns.33 Neither he, nor the many Canadian judges who have followed him, has ever offered any justification, doctrinal or otherwise, for such a rule. Anns itself has since been overruled in the UK.34 There is no apparent reason why the defendant’s voluntarily providing a gratuitous benefit, standing alone, should confer a right on an unharmed plaintiff to receive the benefit. Nor is it sound policy to discourage good Samaritans. It is better to allow the public to obtain some public benefits, albeit imperfect, than none.35 Why
29
See Reason 10, infra. So far, the Supreme Court has only applied this principle where there is a safety rationale. See infra (in draft at 23-24) 31 The Crown Liability legislation does not apply to municipal governments. However, the Good Public Samaritan liability principle has been applied to other government defendants. 32 See especially Horsely v MacLaren, [1970] 2 OR 487 (CA) per Jessup J. See also H.R. Moch v Rensselaer Water, 159 NE 896 (1928) (NYCA). Whenever the Good Samaritan liability principle it is mentioned in private party negligence law it usually turns out that the decision was based on a sounder principle. See e.g. Zelenko v Gimbel Brothers, 287 NYS 134 at 135, aff’d 287 NYS 136 (1936), a clear case of worsening the plaintiff’s position. The Good Public Samaritan principle does apply in the case of professionals like doctors and probably lawyers. A case could be made for extending this line of authority to the police. infra 33 “Passing then to the duty as regards inspection, if made. On principle there must surely be a duty to exercise reasonable care”. Anns, supra note 6 at para 28. This conclusion would also seem to violate the rule now followed in England and Canada that a common law duty cannot be based on a statutory public duty alone. See supra note 18. The Good Public Samaritan rule has since been adopted regularly by the SCC with no further justification or explanation. See e.g. Just v British Columbia, supra note 14 at 1242-3; Rothfield v. Manolakos, supra note 13 at 1266, Ingles v. Tutkaluk Construction , supra note 13 at paras 17-18. There are many pre-Michael applications of the Good Public Samaritan rule in the UK. See generally McBride, Michael Comment, supra note 4. 34 Supra note 13. 35 See McBride, Michael Comment, supra note 4 at 10. 30
should a good Samaritan, public or private, be in a more precarious legal position than others who do nothing? Governments are in the business of providing public benefits: health, safety, education, transportation, housing, culture, recreation, and so on and so on. Governments have limited budgets. Allocating a limited budget among competing claims for public benefits is a political task. Judicial supervision exists quite properly to ensure that the government respects the recognized legal rights of its citizens. These include the right not to be discriminated against on prohibited grounds, the right to be governed honestly and in good faith, the right to receive mandatory entitlements, and the right to enjoy the same protections from government as from private citizens in basic tort law. Imposing a standard of “reasonable care” on the provision of discretionary benefits absent an interference with such rights is different. For the sake of argument assume that accepted standards exist within the for-profit house inspection industry and that the courts could adopt those as a definition of “reasonable”. But why should the government be required to meet a private market standard? Why, as an exercise in governance, should the government not be permitted to adopt instead a lesser standard of inspection, call it a “modest” standard.36 The government could combine this with modest benefits to tennis players who use public courts and modest benefits to library users, and so on. Or the combination could include modest benefits to home buyers and generous benefits to tennis players, and no benefits to library users. A great many different combinations are possible given the number of benefits being distributed. When a court decides that new home owners are entitled to “industry-standard” or otherwise defined “reasonable” inspections, not the modest programs preferred by the municipality, additional costs will be imposed on the municipality. These costs are not related to the infringements of recognized rights. These costs might encourage the defendant to stop providing the discretionary benefit altogether. They might encourage “better” inspection practices and better outcomes for some fortunate home buyers. If so, some other claimants will receive fewer benefits than the municipality would have given them otherwise. Or the municipality might raise taxes. Are these outcomes more “reasonable” than the benefit combination decided upon by the municipality? What is a reasonable benefit allocation? Surely these are political questions, not justiciable questions. Courts lack the institutional competence to allocate public benefits amongst competing claims.37 Two-party litigation is an inadequate vantage point from which to take all relevant considerations into account.38 But the more fundamental reason why courts should decline to become involved in allocative policy that does not infringe the rights of citizens is constitutional. Allocative policy with respect to public benefits, good or bad, is the essence of governance. 36
There are different ways in which an inspection program might fall below industry standard. For example, there could be fewer inspections, less extensive inspections, or a less adequately supervised programs with a higher error rate than in the private sector. 37 See David Cohen and JC Smith, “Entitlement and the Body Politic: Rethinking Negligence in Public Law” (1986) 64 Can Bar Rev 1 at 10-11, and sources cited therein at n 73. 38 Ibid at 8.
Governments should be entitled to select whom to benefit and how. That is politics. Courts should make sure governments respect the public law and private law rights of citizens when governments define and deliver the benefits. That is the judicial function. 7. The overbroad Good Public Samaritan principle undermines stare decisis: The doctrine of stare decisis requires courts to treat like cases alike.39 There are literally thousands of public benefits regularly conveyed to citizens by their governments. Many are distinguishable from the inspection situation. Many are not. Strictly speaking, the courts ought to extend the Good Public Samaritan liability principle across the board to any situation in which the government operates a public benefit program that is in principle similar to the inspection benefit. Thanks to the good sense of most judges, this has not happened. If it did, many, perhaps most government benefits would have to achieve a court-defined standard of reasonable care. Public administration would become overwhelmingly judicialized. The existing division of powers between the courts and the legislatures would not merely shift, it would be entirely redefined. Voluntary judicial restraint in employing the Good Public Samaritan principle across the board is necessary and commendable, but it comes with a cost. It is difficult, perhaps impossible, to predict or justify when the Good Public Samaritan principle will be invoked and when it will not.40 For example, the Supreme Court has recognized unique public duties in the areas of highway safety,41 workplace safety,42 and building construction.43 There seems to be a “safety” theme. However, Health Canada does not owe a duty to consumers when it approves for sale defective medical devices such as jaw or breast implants.44 Why is there proximity between the police or highway maintenance crews and ordinary road users, even in the absence of specific reliance, but not between consumers of medical devices who did specifically rely on the defendants’ product approval posted on their website? Why are highway accidents, where insurance cover is prevalent, or structural building defects that are easily discovered by consumers hiring a private inspector, more worthy of exceptional intervention than other cases like the medical device cases? No principled answers to these questions appear in the reasons for
39
True, this is an uncertain and fungible exercise. Some would argue stare decisis is more an exercise in justification than in logic. Regardless, there are limits to the fungibility. For example, I suggest these limits were exceeded in Vlanich v Typhair 2016 ONCA 517, discussed infra note 45. 40 Unfairness among potential beneficiaries is a problem. See Nick McBride and Roderick Bagshaw, Tort Law 5th ed (Harlow England:Pearson Education, 2015) at 218. 41 Schacht v O’Rourke, supra note 9; Just v British Columbia, supra note14. 42 Fullowka, supra note 16 43 Kamloops (City) v Nielsen, supra note 12. 44 Drady v. Canada, 2008 ONCA 659, leave to appeal refused [2008] SCCA No 492; and Attis v. Canada, 2008 ONCA 660, leave to appeal refused [2008] SCCA No 491.
judgment. The Canadian exceptions appear to be purely ad hoc.45 This is damaging to the structure of the common law.46 8. Narrow defendant-specific rules are also problematic in common law The substantive case against unique public duties is based on a particular view about the distinction between the legislative function and the judicial function. Any exceptional case would violate this distinction. Nevertheless, some prefer to draw the line differently in exceptional cases based on the quest for “good” judicial interventions into what otherwise would be the legislative sphere. I suggest that acceptable exceptions, if there are any, must 1) distinguish meaningfully those cases where an exception is justified; and 2) keep the exception sufficiently narrow that the existing division of powers between the legislative and judicial branch is not radically altered.47 One of the major problems with the Good Public Samaritan principle is that it is overbroad if applied fairly in all analogous situations. It could be narrowed considerably if it were applied only to claims based on personal injury or death. The Canadian unique public duty cases are all safety-based. The Canadian Charter of Rights and Freedom provides a strong precedent for prioritizing personal security over property rights. General negligence law recognizes fundamental distinctions between physical damage and pure economic loss based on both principle and policy.48 There seems to be little judicial appetite for expanding recovery for pure economic loss beyond its relatively limited scope today.49 Refusing to recognize novel unique public duties concerning public benefits relating to property or purely economic interests would be a step in the right direction.50 However, the scope of the judicial intrusion on safety grounds would still remain overbroad. It is also difficult in a common law system to distinguish in principle an imminent risk from a long term risk, or a safety rationale from a health rationale, and so on.
See Erika Chamberlain “To Serve and Protect Whom? Proximity in Cases of Police Failure to Protect” (2016) 53 Alta L R 977 where the author exposes several poorly reasoned lower court decisions about police duties to protect victims of crime. 46 Consider the dilemma the court faced in Vlanich v Typhair, supra note 39. The plaintiff relied on the unique inspection cases and the underlying Good Public Samaritan liability principle to argue that the defendant owed it a duty to enforce its bylaws with reasonable care. The Court of Appeal felt compelled to “distinguish” the inspection cases by stating that the inspection authorities had “invited the injured party to rely on an inspection, and it has assumed responsibility for avoiding the risk.” See para 32. Of course, the inspection duties were not based on either induced transaction-specific reliance or an assumption of responsibility. Suggesting otherwise was probably the only way in which the Court of Appeal could reconcile the lack of proximity with the doctrine of stare decisis. 47 These are limits I would propose for unilateral action by the courts. The legislature is free, subject to claims of right, to select which constituencies it wishes to benefit and which not. 48 See e.g. Peter Benson, “Misfeasance as an Organizing Normative Idea in Private Law” (2010) 60 U Toronto L J 731 at 865; Allan Beever, Rediscovering the Law of Negligence (Oxford:Hart Publishing, 2007) at 214; Canadian National Railway Co v Norsk Pacific Steamship Co, [1992] 1 SCR 1021, per LaForest J dissenting, eventually adopted by the court in Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, [1997] 3 SCR 1210. 49 Recovery for one type of pure economic loss, dangerously defective housing construction, is well-entrenched in the inspection cases. This would have to be carved off somehow. 50 See Vlanich, supra note 39 at para 31. 45
In the wake of the controversial decision in Michael, a proposal by Tofaris and Steele to adopt a particular duty of care owed by the police to protect citizens from the criminal acts of others has received favorable attention in the UK.51 It seems to be a “good” proposal from a policy point of view, although one can seldom really be sure.52 It deals only with special risks of personal harm, a type of risk with more moral and legal significance than property damage or economic loss. Restricting the duty to police, and to a limited class in a limited set of circumstances, certainly minimizes the scope of the judicial intrusion into the legislative realm. Nevertheless, the more specific we are in defining the exception, the more likely that we will exclude other situations that are not distinguishable in principle. Lords Toulson’s and Kerr’s sparring over several options in Michael illustrates this. Why are dangers posed by a third party different from other risks to life and limb? Why police, but not other emergency responders like firefighters? Does an imminent safety risk warrant different treatment from an imminent health risk, for example, or even a long term risk of industrial disease? What is needed in common law is a principle of narrow application rather than a narrow application of a broader principle. “Good” proposals such as this one should be left to the legislature. There is no need for stare decisis with legislation.
9. Abandoning Unique Public Duties could render “policy immunity” unnecessary At least since the decision in Cooper v Hobart,53 when policy immunity is relied upon to exculpate a public defendant from negligence liability it is almost invariably employed as an alternative basis for dismissing the action. Typically, the courts dismiss the claim by finding at step one of the Anns/Cooper template that there was insufficient proximity between the public defendant and the private party plaintiff. Then, in the alternative the courts usually hold that even had there been sufficient proximity, the duty would be negatived because the situation was one in which the defendant enjoyed policy immunity. The other and similar variant is to find there was sufficient proximity, and that the case for policy immunity was not made out. These common patterns of “no proximity-policy immunity” or “proximity-no policy immunity” suggest that the developing concept of proximity may have rendered the concept of policy immunity superfluous. However, the exceptional decision in Imperial Tobacco demonstrates that the Supreme Court disagrees.54
51
Stelios Tofaris and Sandy Steel, Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink (University of Cambridge Legal Studies Research Paper Series, Paper No 39/2014) at 5, available at https://ssrn.com/abstract=2469532 and quoted in dissent by Lady Hale in Michael supra note 2 at para 189. See also at para 197 per Lady Hale, and at paras 178-181 per L Kerr dissenting. See also Tofaris and Steel, “Negligence Liability for Omissions and the Police” (2016) 75 Cam LJ 128. 52 One may still ask why, unless the police were in some way specifically responsible for the risk of criminal attacks by others, ought there to be a unique public duty? How confident are we that the proposed rules will actually increase the degree of protection the police currently offer to potential victims of criminal attacks? For a fascinating take on this problem see Margaret Hall, “Theorizing the Institutional Tortfeasor” (2016) 53 Alta L R 995. 53 [2001] 3 SCR 537, 2001 SCC 79. 54 R v Imperial Tobacco Canada, 2011 SCC 42, 3 SCR 45.
In Imperial Tobacco smokers and former smokers brought a class action against several tobacco companies alleging their health had been endangered by being induced by the tobacco companies to smoke so-called “light cigarettes”. These low tar cigarettes turned out to be as or more dangerous than regular cigarettes. The tobacco companies sought to add Health Canada as a defendant, claiming that the companies had been induced to market light cigarettes by the government department. The government was successful in having the claim against them struck out by the Supreme Court of Canada. In Imperial Tobacco, the Supreme Court broke the standard pattern. The court made a finding of proximity between the government and the regulated tobacco companies based on standard negligent misrepresentation authority. Notwithstanding proximity, the court negated that prima facie duty on the basis of policy immunity. The decision is “exceptional” because “yes proximity- yes immunity” is a rare pattern in public authority negligence.55 “Policy immunity” is a hopelessly unpredictable concept.56 It is also strikingly strange, if not just plain wrong, that “policy immunity” can be employed to immunize precisely the type of tortious conduct for which the government has voluntarily waived its historical sovereign immunity in the Crown Liability Act.57 In contrast, unique public duties violate the Crown Liability legislation. If we were to restrict public liability to cases where an analogous duty existed in private party law, we would have an effective replacement for the now discredited notion of “operational negligence.”58 I am hard pressed to see why the courts would need to immunize this otherwise tortious government conduct. That task is best left to the government itself. 10. Are unique public duties really necessary? In Michael, Ms. Michael was discovered by her ex-partner, Williams, in her bed with another man. Williams hit her, left to take the other man into town, and told her he would return to kill her. Her emergency call to the police was misrouted to the neighbouring county and answered by a police operator, Ms Mason. Michael described the attack and told Mason that Williams was going to kill her. Mason told Michael she would notify the police force in Michael’s area. She logged the call as “Grade 1” which meant a response within 5 minutes was required. However, when Mason contacted Gould, the police operator in Michael’s area, she neglected to mention that Michael was in fear for her life. Gould therefore logged the call as “Grade 2” which meant a response within an hour. Michael called a second time about 15 minutes after her first call. Screams were heard on the line and then the call ended. The event was then upgraded to “Grade
55
See also Adams v Borrel, 2008 NBCA 62 where the trial judge had also recognized proximity, but granted immunity. The Court of Appeal agreed there was proximity, but did not recognize immunity. Leave to appeal to the Supreme Court was refused, [2008] SCCA No 470. Interestingly, McLachlin CJC who gave the decision in Imperial Tobacco was the trial judge in Just, supra note 14. At trial, she also recognized proximity but granted immunity. 56
See Bruce Feldthusen, "Public Authority Immunity from Negligence Liability: Uncertain, Unnecessary, and Unjustified” (2014) 92 Canadian Bar Review 211. 57 See supra at text accompanying note 20. 58 Imperial Tobacco, supra note 54.
1”. The police arrived at Michael’s home 22 minutes after her first call and discovered that Williams had brutally stabbed Michael to death. Had the police not bungled her first call, it seems likely that the claimants could have established that the police would have been able to save Michael’s life. The UKSC struck out the family’s claim for damages against the police. It held, resolving two competing lines of authority, that the courts should not recognize unique public duties of care. The majority considered two recognized exceptions to the “no duty” rule in private party negligence law, eventually holding that neither applied to the facts. The first was when one party owed a duty to control another, and thereby came under a duty to protect a third party.59 The second was when the defendant assumed responsibility to benefit the plaintiff under the Hedley Byrne principle.60 The UKSC applied, ironically, a special requirement that the assumption of responsibility by the police must be promissory in nature, not merely one that induced detrimental reliance.61 Given the shocking facts in Michael, and the apparent impotence of private party negligence law, it is easy to sympathize with a call for a unique public duty. It is also understandable that many would feel entitled to expect more of a professional police force than of an ordinary private citizen in a case like Michael. The good news, at least in Canada, is that ordinary negligence law is well-equipped to deal with the Michael claim, and to recognize the special attributes and responsibilities of the public defendant within the standard negligence framework. “Assumption of responsibility” has not been as widely developed in Canada as in the UK. Since Hedley Byrne, assumption of responsibility is usually associated with negligent misrepresentation. However, the Supreme Court of Canada no longer follows Hedley Byrne in negligent misrepresentation cases. According to the leading decision, Hercules Managements v Ernst & Young, a plaintiff need only establish that the defendant ought to have reasonably foreseen that the plaintiff would rely on the information or advice to its detriment, and that reliance in the particular case was reasonable.62 Hercules also restricted the scope of the duty by adopting a transaction-specific “end and aim” test to control indeterminate liability.63 Possibly the reliance approach in Hercules has replaced the assumption of responsibility approach across the board.64 Either way, the claimants in Michael would have a strong case in Canada. It is obvious that someone in the position of Ms. Mason, the first police call operator reached by Ms Michael, knows that emergency callers are relying on her. The claim is transaction-specific.
59
Supra note 2 at para 135. Supra note 2 at para 136. 61 See Michael, supra note 1 at para 164. 62 [1997] 2 SCR 165. 63 Hercules Managements v Ernst & Young, [1997] 2 SCR 165. This is developed by Bruce Feldthusen, [Hedley Byrne], supra note 27, Ch 11. 64 That said, there is ample support for the assumption of responsibility principle that has never been overruled or even criticized. See e.g. Welbridge Holdings, supra note 22; J Nunes Diamonds Ltd v Dominion Electric Protection Co, [1972] SCR 769 per Spence J (dissenting), citing John Fleming, The Law of Torts, 4th ed (Sydney:Law Book Co, 1971) 564; Hodgins v Nepean (Township) Hydro-Electric Commission, [1976] 2 SCR 501; Carman Construction Ltd v Canadian Pacific Railway Co, [1982] 1 SCR 958; Central Trust Co v Rafuse, [1986] 2 SCR 147. 60
The very nature of the service is to intend, induce and invite specific reliance.65 Surely Ms Michael was entitled to believe at a minimum that the first operator who took her call undertook to convey the full and relevant details of her call to the proper police force according to established police procedure. This she failed to do. When Mason asked Michael whether she was able to lock the house, it would have been reasonable for Michael, beaten, terrified, alone, and as vulnerable to Mason as she can possibly be, to assume that she was being advised to stay in the house and lock up. Citizens call the emergency line expecting a proper response to the emergency. Relying on the police to provide one is entirely reasonable. Many if not most of the significant facts referred to immediately above are uniquely associated with the police response to an emergency call. However, the duty they support is not a unique public duty. The principle that liability will be imposed based on an assumption of responsibility is a principle of basic negligence law. The very nature of the public emergency service is to intend, induce and invite specific reliance, the touchstones of an assumption of responsibility. In this way, the common law may take into account factual matrixes that are unique to government activity66 and address the understandable view that there are situations where we might expect more from the government than from a private citizen.67 The important thing is that the principle of law is the same. In contrast, to impose liability on the police in the absence of an assumption of responsibility would require a unique principle of public liability.
65
This is and has been for years the clear test adopted in the Restatement, Second, Torts. It is repeated in the forthcoming version, Restatement, Third, Torts: Liability for Economic Harm. Professor (now Justice) Brown, citing Professor Perry, speaks of ‘ … a general, objective manifestation of an ‘intention to induce another person to believe that he or she may rely’ on the undertaker to act (or refrain from acting) in a certain way”. Russell Brown, ‘Assumption of Responsibility and Loss of Bargain in Tort Law’ (2006) 29 Dalhousie Law Journal 345, citing Stephen R Perry, ‘Protected Interests and Undertakings in the Law of Negligence’ (1992) 42 U of Toronto Law Journal 247, at 282. To be fair, the assumption of responsibility approach is not entirely without difficulty for someone in Michael’s position, whether the defendant is a private or public actor. On one view, the duty so assumed is merely a duty not to make the situation worse, as, for example, by inducing detrimental reliance. If so, this is not properly defined as an exception to the general rule that there is no duty to confer a benefit upon another. A volunteer’s liability for the infliction of fresh harm is a principle that antedates Hedley Byrne, applies to acts as well as to statements, and applies to physical harm as well as to economic loss. See e.g.Mercer v SE&C Ry, [1922] 2KB 549. Since the action was struck out we do not know whether the claimants in Michael could have adduced evidence to support an allegation that Michael changed her position for the worse, declining to seek other aid perhaps, in reliance on the police. There is a different approach to assumption of responsibility supported by several prominent academics abroad which might be called the “equivalent to contract” approach. It takes the view that a defendant could assume responsibility to convey a benefit to the plaintiff, not merely to refrain from inflicting fresh harm. See Allan Beever, “The Basis of the Hedley Byrne Action” in The Law of Misstatements, supra note 27 at 104-105; Robert Stevens, Torts and Rights (Oxford:Oxford University Press, 2007) at 14; and Donal Nolan, “The Liability of Public Authorities for Failing to Confer Benefits (2011) 127 LQR 260 at 282-283. The majority in Michael presumably rejected this claim on the facts as pleaded. See Michael, supra note 1 at para 164. 67 The same is true of the decision in Hill v Hamilton Police, supra note 3. 66
