Duty of Care

Forensic Support Services Inc. v. Out Of The Cold Resource Centre Inc., 2007 CanLII 1864 (ON SC)

[27] In Cooper v. Hobart, 2001 SCC 79 (CanLII), (2001) 3 S.C.R. 537, the Supreme Court described the process for determining whether a duty of care exists. McLachlin, C.J. and Major, J. delivered the judgment for the Court and they stated in paragraphs 30 to 31:

[30] In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is best understood as follows. At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be, as the Privy Council suggests in Yuen Kun Yeu, that such considerations will not often prevail. However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed.

[31] On the first branch of the Anns test, reasonable foreseeability of the harm must be supplemented by proximity. The question is what is meant by proximity. Two things may be said. The first is that "proximity" is generally used in the authorities to characterize the type of relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances.

As appears, in determining whether a duty of care exists, the Court must consider whether there are relevant policy considerations for not recognizing a duty of care, notwithstanding that harm occurred that was a reasonably foreseeable consequence of the defendants’ actions.

[28] Applying the approach adopted in Cooper v. Hobart, in my opinion, there are insurmountable policy concerns against recognizing a duty of care to downstream suppliers with whom there is no contractual relationship. All the well-known problems of indeterminate liability for purely economic loss claims are present, as is the problem of tort liability overrunning the law of contract.