Date: Thu, 17 Mar 2005 17:25:12 -0700

From: Russell Brown

Subject: James v. British Columbia

The British Columbia Court of Appeal has just released James v. British Columbia, 2005 BCCA 136.

The Court affirmed the trial judge's certification of a class proceeding brought against the Province by unemployed sawmillers who allege that the provincial Minister of Forests negligently failed to include in a tree farm license a term which would have prevented the mill from closing without the Minister's approval. Esson J.A.'s reasons (for the court) demonstrate (in my view) the ongoing problems posed by Anns v. Merton and Cooper v. Hobart in Canadian jurisprudence. Perhaps the most curious aspects of the reasons however are (1) that Esson J.A. seems to suggest that Hedley Byrne does not require detrimental reliance (at least in the circumstances of this case, where it would have been 'unrealistic' to require the plaintiffs to prove detrimental reliance) , and (2) in support of that proposition, Esson J.A. applies the disappointed wills beneficiary cases.

Maybe it's time to give up trying to explain the White v. Jones cases and just carve them off from Professor Feldthusen's 'negligent provision of a service' category of pure economic loss. In this way at least Canadian judges won't be tempted to apply them to pure economic loss cases generally.

Best wishes,
Russ Brown

Professor Russell Brown
Faculty of Law
University of Alberta
435 Law Centre
Edmonton, Canada T6G 2H5

tel. 1-(780) 492-1962
fax 1-(780) 492-4924

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