Unique Public Duties of Care: Judicial Activism in the Supreme Court of Canada

Abstract

Typically, government liability in tort depends on whether the government in question,
 through legislation, has consented to be held liable for its otherwise tortious acts. However,
 the Supreme Court of Canada has behaved in an activist manner by ignoring or eviscerating
 this legislation, altering and expanding what governments can be held liable for. This article
 explains how this process has occurred, providing five specific examples where unique
 public duties of care were created. An open discussion is needed about whether the Supreme
 Court ought to continue doing this and, if so, on what basis. This article starts that
 discussion.