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In the recent decision in Taylor v. Canada (Attorney General),
the Court of Appeal for Ontario addressed the requirements for a
plaintiff to establish sufficient proximity between the plaintiff
and the defendant in a claim brought against a governmental body
for regulatory negligence.
The matter came before the court as a "special case"
arising from an apparent inconsistency in the court's prior
decisions in Drady v. Canada (Health), leave to appeal to
S.C.C. refused, [2008] S.C.C.A. No. 492, and Attis v. Canada (Health), leave to appeal to
S.C.C. refused, [2008] S.C.C.A. No. 491, on the one hand, and Sauer v. Canada (Attorney General), leave to
appeal to S.C.C. refused, [2007] S.C.C.A. No. 454, on the
other.
The underlying issue was whether the pleadings in this case were
sufficient to support the allegation that Health Canada was
negligent in regulating a joint implant manufactured in the US and
sold in Canada (see the decision of the Divisional Court in Taylor v. Canada (A.G.)).
The court acknowledged that, arguably, Drady and Attis require a
more direct connection between a plaintiff and the regulator before
the latter can be said to owe a duty of care. In Drady and
Attis, the court looked first at the relevant legislative scheme
and found that it imposed no private law duty of care. The court
then turned to the pleadings in each case to determine whether the
interactions between the regulator and the plaintiff set forth in
the pleadings created a relationship of proximity such as to
justify a finding of a prima facie duty of care. Unlike Drady and
Attis, which addressed the proximity requirement in detail, Sauer
considered proximity only briefly and appeared to focus on the
regulator's public representations to the plaintiffs.
In Taylor, the Court of Appeal held that the requirements for
proximity are diverse and depend on the facts of each particular
case. In reaching this conclusion, the court found that
while public representations by a regulator as to its public duties
and obligations do not of themselves establish a relationship of
proximity between the regulator and an individual plaintiff, they
are properly included in the factual matrix to be considered in
determining whether the interactions between a regulator and a
plaintiff are sufficiently direct and close to warrant a finding of
proximity. In particular, the court held that a finding of
proximity based entirely on a regulator's public
acknowledgement of its public duties to those affected by its
actions, coupled with reliance by those affected on the
regulator's public statements, would be inconsistent with the
Supreme Court of Canada's rejection in R. v. Imperial Tobacco Canada Ltd., 2011 SCC
42, of the claim that Health Canada owed a private law duty of care
to consumers of low-tar cigarettes because it had made public
representations as to the relative safety of those cigarettes.
In the result, it was not plain and obvious that the allegations
in plaintiff's statement of claim could not support a
finding that Health Canada owed the plaintiff a prima facie private
law duty of care. The plaintiff was given a reasonable
opportunity to reframe and streamline her pleadings in light of the
court's reasons.
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