Tilting the Balance of Power between the Courts and Government Through the Common Law of Negligence

Abstract

It is an interesting political question whether the courts ought to impose upon government and other statutory public authorities negligence duties of care that would not be imposed on private actors. This draft considers five Supreme Court of Canada decisions in which the court has done exactly that. These decisions deal predominantly with affirmative duties to benefit or protect another party. These cases are contrasted to the ordinary private party law of negligence where no such duties would be recognized. The Supreme Court has knowing created these special duties without any open discussion about whether it was legitimate or desirable to do so. The draft exposes the judicial neutering of Crown Liability legislation. The absence of any foundation for the special duties of care except the statutory public duty is noted. The draft does not provide definitive answers to whether special governmental obligations are appropriate or desirable. It does expose the issues and seeks to stimulate an open debate on the subject.