Please Anns – No More Proximity Soup

Supreme Court of Canada Law Review, Forthcoming

Ottawa Faculty of Law Working Paper No. 2018-21

28 Pages Posted: 24 Sep 2018

See all articles by Bruce Feldthusen

Bruce Feldthusen

University of Ottawa - Common Law Section

Date Written: September 4, 2018

Abstract

Under the Anns/Cooper template “proximity” is nominally the key concept the Canadian courts employ when deciding whether to recognize novel duties of care in negligence. This article reviews Supreme Court decisions over the past 40 years. It exposes “proximity” as a shape-shifter and the two-step Anns/Cooper template as a sham. The author argues that the Anns/Cooper template ought to be abandoned, or that more diligence be applied to the template, particularly to the concept of proximity. A clearer distinction between true proximity – matters of relationship between the parties, and distributive policy-making is required. If both are to be employed, the conditions under which judicial policy-making is appropriate must be specified, and the circumstances when such policy trumps true proximity, if any, articulated. The overwhelming complexity of proximity in actions against the government and statutory authorities can be eliminated simply by following the UK’s leading and refusing to recognize unique public duties of care.

Keywords: torts, negligence, duty, proximity, Anns, Cooper

Suggested Citation

Feldthusen, Bruce, Please Anns – No More Proximity Soup (September 4, 2018). Supreme Court of Canada Law Review, Forthcoming ; Ottawa Faculty of Law Working Paper No. 2018-21. Available at SSRN: https://ssrn.com/abstract=3243865 or http://dx.doi.org/10.2139/ssrn.3243865

Bruce Feldthusen (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Register to save articles to
your library

Register

Paper statistics

Downloads
79
Abstract Views
312
rank
305,713
PlumX Metrics