REGULAR ANALYSIS:

1. DUTY OF CARE
a. Is there a settled category of which this situation fits into?
i. If YES = use DoC and continue analysis
ii. If NO = Anns/Cooper Analysis
b. Foreseeability of Harm
i. Whether it is reasonable for the defendant to contemplate whether the plaintiff could suffer harm
from their actions à plaintiff must be foreseeable (Hay)
ii. Not necessary for the specific harm to be foreseeable, just harm in general (Imperial Tobacco)
c. Proximity of Harm
i. Guidepost = IS IT JUST AND FAIR TO IMPOSE LIABILITY
ii. Factual proximity between the parties
- Physical proximity (Ernst 3)
- Reliance, expectations, representations (Cooper)
iii. Micro policy issues to negate DoC
- Individual level concerns
iv. Misfeasance and Non-feasance (Horsley)
- Mis = did something wrong à therefore liability
- Non = didn’t do anything à therefore NO liability UNLESS SPECIAL RELATIONSHIP (Klar)
o Economic benefit (Jordanhouse)
o Relationship of control of supervision (Osborne)
o Creation of dangerous situation (Oke)
o Reliance relationship / Undertaking (Zelenko, Mercer)
v. Statutory Duties (O’Rourke, Sask. Wheat Pool)

d. Residual Policy Factors to negate DoC

i. Societal level concerns
ii. Quasi-judicial nature, Discretionary Powers, ‘Chilling effect’, Flood of litigation (Hill)
iii. Indeterminate liability (Cooper, Ernst 2, Hercules)
iv. Policy vs. operational decisions (Just, Imperial)
v. Limiting bodily autonomy (Dobson, Childs)
vi. Parallel system of justice available, or Another field of law is more appropriate to deal with matter

2. STANDARD OF CARE
a. The “negligent act” à falling below the standard and creating risk
b. Reasonable person (Vaughan)
c. Foreseeability of Risk
i. Risk of harm = Magnitude of harm x Likelihood of harm (Bolton)
d. Cost of preventative measures
e. Utility of conduct (Bolton)
f. Emergency situations (Emergency Medical Aid Act)
g. Custom (Waldick)
h. Statutory standards (Osborne, Sask. Wheat Pool, Ryan v. Victoria, Gorris Scott)
i. Particular cases
i. Professionals (Challand, Brenner)
ii. Children (Heisler, McEllistrum TEST vs. McErlean)
iii. Disabilities
- Physical (Osborne)
- Mental (Fiala, Buckley TEST)
3. DAMAGES
a. There is a requirement for damage to be liable for negligence
b. “Negligence is not in the air” (Osborne)
c. Can be physical injury, mental injury (Sadaati), property harm, financial losses (PEL)

4. CAUSATION
a. But for the defendant's actions would the harm have occurred? – If answer is NO there
is liability (Kaufmann, Clements)
b. Plaintiff has burden on BoP
c. BUT FOR test:
i. Identify the HARM
ii. Isolate the breach in standard of care
iii. Adjust facts to satisfy SoC – i.e. Imagine breach had not occurred
iv. Would harm have occurred?
v. Answer Q in 4
d. Need a Robust and Pragmatic application of the test (Snell) – no other tests (i.e. MCR)
or reverse onus available

5. REMOTENESS
a. Reasonable foreseeability test (Wagonmound 1)
i. Only be held liable for the reasonably foreseeable consequences of their actions
ii. Possibility of damage must be real and not far-fetched, more than possible (Wagonmound 2)
iii. The exact harm suffered does not need to be foreseeable, just that harm in general was
foreseeable (Hughes)
b. Recurring Issues
i. Think Skull Doctrine (Leech Brain)
ii. Crumbling Skull Doctrine (Athey)
iii. Psychiatric Harm (Mustapha, Sadaati)
iv. Rescue (Horsley)
v. Intervening Forces (Harris v. TTC)

6. DEFENCES
a. Contributory Negligence (Labbee, Galaske)
b. Voluntary Assumption of Risk (Lagasse, Crocker, Hambley)
c. Illegality (Hall, Zastowny)
d. Inevitable Accident (Osborne)

7. REMEDY
a. Damages are the most common award for a successful tort action (CB)
i. Compensatory à pecuniary vs. non-pecuniary
ii. Punitive
iii. Nominal
iv. Aggravated
PUBLIC AUTHORITY:
1. DUTY OF CARE
a. Is there a settled category of which this situation fits into?
i. If YES = use DoC and continue analysis
ii. If NO = Anns/Cooper Analysis

b. Foreseeability of Harm
i. Whether it is reasonable for the defendant to contemplate whether the plaintiff could suffer harm
from their actions à plaintiff must be foreseeable (Hay)
ii. Not necessary for the specific harm to be foreseeable, just harm in general (Imperial Tobacco)
c. Proximity of Harm
i. Statute FIRST (Taylor, Ernst)
- Express civil liability clause
- Liability immunity clause
ii. Interactions / Circumstances à INDIVIDUALS need to show greater proximity than general public
- Fullowka Sliding Scale
o Physical proximity (Ernst 3)
o Group size
o Regulatory regime / statutory duties
iii. Guidepost = IS IT JUST AND FAIR TO IMPOSE LIABILITY
iv. Micro policy issues to negate DoC – individual levels concerns
v. Misfeasance and Non-feasance (Horsley) à RELIANCE RELATIONSHIP

d. Residual Policy Factors to negate DoC

i. Societal level concerns
ii. Policy vs. Operation decisions (Just, Imperial Tobacco)
- Think about level on bureaucratic ladder à social/economic/political considerations
- Deliberate course of action à MORE than discretion
iii. Unintended insurance scheme; moving responsibility away from those best positioned for it i.e.
manufacturer to gov. (Imperial)
iv. Conflict between public and private duties (Ernst 2, Taylor)
v. Indeterminate liability (Cooper)

2. STANDARD OF CARE
a. The “negligent act” à falling below the standard and creating risk
b. Reasonable person (Vaughan) = Reasonable Regulator (purpose is to make industry safe)
c. Foreseeability of Risk
i. Risk of harm = Magnitude of harm x Likelihood of harm (Bolton)
d. Cost of preventative measures
e. Utility of conduct (Bolton)
f. Custom (Waldick)
g. Statutory standards (Osborne, Sask. Wheat Pool, Ryan v. Victoria, Gorris Scott)
h. Particular cases
i. Professionals (Challand, Brenner)

3. DAMAGES
4. CAUSATION
5. REMOTENESS
6. DEFENCES
PURE ECONOMIC LOSS:

Threshold question à was there a representation made? (Hedley)

1. DUTY OF CARE
a. Is there a settled category of which this situation fits into?
i. If YES = use DoC and continue analysis
- Delliote must be analogous facts [identities and interactions]
ii. If NO = Anns/Cooper Analysis

b. Proximity of Harm
FLIP stage 1 (Delliote) à proximity will inform the foreseeability analysis (Hercules)
i. Looking for a SPECIAL RELATIONSHIP (Queen v. Cognos)
ii. Reasonable Foreseeability of Reliance
- Could talk about Hedley 3 answers (i.e. silence, answer w/ Q, answer w/o Q)
iii. Reasonable Reliance à 5 Feldhusen Factors (Hercules)
- D had direct/indirect financial interest in purpose for which representation was made
- Dis a professional or someone who possessed special skill, judgement, or knowledge
- The advice or information was provided in the course of the D's business
- The information or advice was given deliberately and not on a social occasion
- The information was given in response to a specific enquiry or request
iv. DISCLAIMER OF LIABILITY CAN NEGATE REASONABLE RELIANCE (Hedley)
v. Guidepost = IS IT JUST AND FAIR TO IMPOSE LIABILITY (Cooper)
vi. Micro policy issues to negate DoC – individual levels concerns
vii. Misfeasance and Non-feasance (Horsley) à ECONOMIC BENEFIT / RELIANCE RELATIONSHIP

c. Foreseeability of Harm
i. The losses incurred must be related to the breach à If the misrepresentation is used for a
purpose outside of which it was prepared = D does not have liability (Hercules)
ii. Whether it is reasonable for the defendant to contemplate whether the plaintiff could suffer harm
from their actions à plaintiff must be foreseeable (Hay)

iii. Not necessary for the specific harm to be foreseeable, just harm in general (Imperia Tobacco)

d. Residual Policy Factors to negate DoC

i. Societal level concerns
ii. There should be very little residual policy issues if first stage is done correctly (Delliote)
iii. What remains in the second stage?
- Whether the law already provides a remedy
- Residual indeterminacy issues [SHOULD NOT BE ANY IF THERE IS SPECIAL RELATIONSHIP]
- Broad catch all policy considerations
iv. Indeterminacy should not be confused with 'significant' liability
v. Indeterminacy can be; temporal, claimant, value
2. STANDARD OF CARE
a. The “negligent act” à falling below the standard and creating risk
i. The representation in question must be untrue, inaccurate, or misleading (Queen)
ii. The representor must have acted negligently in making said misrepresentation (Queen)
b. Reasonable person (Vaughan)
c. Foreseeability of Risk
i. Risk of harm = Magnitude of harm x Likelihood of harm (Bolton)
d. Cost of preventative measures
e. Utility of conduct (Bolton)
f. Custom (Waldick)
g. Statutory standards (Osborne, Sask. Wheat Pool, Ryan v. Victoria, Gorris Scott)
h. Particular cases
i. Professionals (Challand, Brenner)

3. DAMAGES
4. CAUSATION
a. But For Test
b. The representee must have relied, in a reasonable manner, on said misrepresentation (Queen)

5. REMOTENESS
a. Remoteness does not come into play here because of the special relationship created (Queen, Delliote)

6. DEFENCES
PURE ECONOMIC LOSS OF A PUBLIC AUTHORITY: (Imperial Tobacco)

Threshold question à was there a representation made? (Hedley)

1. DUTY OF CARE
a. Is there a settled category of which this situation fits into?
i. If YES = use DoC and continue analysis
- Delliote must be analogous facts [identities and interactions]
ii. If NO = Anns/Cooper Analysis

b. Proximity of Harm
FLIP stage 1 (Delliote) à proximity will inform the foreseeability analysis (Hercules)

i. Statute FIRST (Taylor, Ernst)

- Express civil liability clause
- Liability immunity clause

ii. Looking for a SPECIAL RELATIONSHIP (Queen v. Cognos)

iii. Reasonable Foreseeability of Reliance
- Could talk about Hedley 3 answers (i.e. silence, answer w/ Q, answer w/o Q)
iv. Reasonable Reliance à 5 Feldhusen Factors (Hercules)
- D had direct/indirect financial interest in purpose for which representation was made
- Dis a professional or someone who possessed special skill, judgement, or knowledge
- The advice or information was provided in the course of the D's business
- The information or advice was given deliberately and not on a social occasion
- The information was given in response to a specific enquiry or request
v. DISCLAIMER OF LIABILITY CAN NEGATE REASONABLE RELIANCE (Hedley)

vi. Interactions / Circumstances (Imperial)

à INDIVIDUALS need to show greater proximity than general public, i.e. that the relationship
between the regulator and the individual was proximate
à CORPORATIONS look for an undertaking of duties outside of statutory duties
- Fullowka Sliding Scale
o Physical proximity (Ernst 3)
o Group size
o Regulatory regime / statutory duties

vii. Guidepost = IS IT JUST AND FAIR TO IMPOSE LIABILITY

c. Foreseeability of Harm
i. The losses incurred must be related to the breach à If the misrepresentation is used for a
purpose outside of which it was prepared = D does not have liability, no foreseeability (Hercules)
ii. Whether it is reasonable for the defendant to contemplate whether the plaintiff could suffer harm
from their actions à plaintiff must be foreseeable (Hay)

iii. Not necessary for the specific harm to be foreseeable, just harm in general (Imperia Tobacco)
 d. Residual Policy Factors to negate DoC
i. Societal level concerns
ii. There should be very little residual policy issues if first stage is done correctly (Delliote)

iii. Policy vs. Operation decisions (Just, Imperial) Policy = no liability (unless bad faith or irrational)
- Think about level on bureaucratic ladder à social/economic/political considerations
- Deliberate course of action à MORE than discretion
iv. Unintended insurance scheme; moving responsibility away from those best positioned for it i.e.
manufacturer to gov. (Imperial)
v. Conflict between public and private duties (Ernst 2, Taylor)

vi. What remains in the second stage? (Delliote)

- Whether the law already provides a remedy
- Residual indeterminacy issues [SHOULD NOT BE ANY IF THERE IS SPECIAL RELATIONSHIP]
- Broad catch all policy considerations
vii. Indeterminate liability (Cooper); should not be confused with 'significant' liability (Delliote)
viii. Indeterminacy can be; temporal, claimant, value

2. STANDARD OF CARE
a. The “negligent act” à falling below the standard and creating risk
i. The representation in question must be untrue, inaccurate, or misleading (Queen)
ii. The representor must have acted negligently in making said misrepresentation (Queen)

b. Reasonable person (Vaughan) = Reasonable Regulator (purpose is to make industry safe)

c. Foreseeability of Risk
i. Risk of harm = Magnitude of harm x Likelihood of harm (Bolton)
d. Cost of preventative measures
e. Utility of conduct (Bolton)
f. Custom (Waldick)
g. Statutory standards (Osborne, Sask. Wheat Pool, Ryan v. Victoria, Gorris Scott)
h. Particular cases
i. Professionals (Challand, Brenner)

3. DAMAGES à not derivative loss, is purely economic only not attached to anything else
4. CAUSATION
a. But For Test
b. The representee must have relied, in a reasonable manner, on said misrepresentation (Queen)
i. Think about if the reliance was exclusive – i.e. more than one representation being made
ii. Must be an imbalance of knowledge otherwise there was no reliance in the first place

5. REMOTENESS
a. Remoteness does not come into play here because of the special relationship created (Queen, Delliote)

6. DEFENCES
FULLOWKA SLIDING SCALE:
(1) Cooper v. Hobart: No Proximate relationship between Mortgage regulator and public investors
(2) Edwards v. Law Society of Upper Canada: No Proximate relationship between Law Society and public (clients
of lawyers) à also had immunity from suits for damages (by Statute)
(3) Ernst 1 and 2: No Proximity, Regulator has no direct authority over the public à Even thought there were
direct communications, it was all within the statutory regime
(4) Taylor v. Canada (AG): Proximity (but was a motion to strike case that then went to trial)
o Enough evidence to show proximate relationship between Health Canada and victims of defective TMJ
implants
• Health Canada had knowledge of defective product and did not act to limit the serious ongoing
risks, making this a close and direct relationship
• Identifiable group (implant customers/victims)

(5) Imperial Tobacco: Proximity (but no DoC for stage 2 reasons)

(6) Ernst 3: Proximity
o Because the regulator had acted in bad faith, they were not entitled to statutory immunity clause
protection
o Biggest difference in this case and other Ernst cases was the physical proximity of the regulator going to
property and inspecting it ** this could make incentive for regulators to not do duties to not make
proximity
(7) Just: Sued BC highway authority for negligently maintaining roadways when a bolder fell on car and killed
daughter, was success because this was an OPERATION decision not policy
o Contrast with Browne where the facts were similar but sued on basis of not having rigorous enough
inspections, the inspections were found to be a POLICY decision, therefore no DoC
(8) Kamloops: Proximity of building inspectors to building purchasers
(9) Fullowka v. Pinkerton's Of Canada: Proximate relationship between Government Inspectors and deceased
Miners
• Small and identifiable group
• Personal dealings with miners (visits, etc..)
• Statutory duties towards miners themselves (as opposed to public)
o No negligence due to satisfying SoC through obtaining legal advice
(10) Hill v. Hamilton-Wentworth Police Services Board: Proximate relationship between arresting officer and
suspect, and no policy reasons to negate the prima facie duty of care
o Police actions met the standard of care à no negligence