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Date: Wed, 3 Oct 2007 01:17

From: Neil Foster

Subject: Breach of Statute in Canada


Dear Jason, Lewis et al

Thanks for the case, Jason. I have read it and also the one that they distinguish from the UK, Consignia Plc v Hays Plc. I must say that from my understanding of Saskatchewan Wheat Pool that this case cannot be correct under present Canadian law. The two attempts to distinguish Saskatchewan Wheat Pool are frankly problematic.

(1) At paras [13]-[14] Macfarland JA says that this case is different from Saskatchewan Wheat Pool because Saskatchewan Wheat Pool had to do with a "breach of a statutory duty of care" and this case is "not a negligence case". In fact the question of "duty of care" was not the issue in Saskatchewan Wheat Pool; it was a question as to whether there could be a civil action for breach of statutory duty, which is a separate tort. The issue in Canada Postal Corp was, to my mind, precisely the issue noted in the quote in para [14] from Dickson J (not "Dixon J"; the Ontario CA don't even seem to know how to spell his name any more!): "where A has breached a statutory duty causing injury to B, does B have a civil cause of action against A?". The decision in Saskatchewan Wheat Pool seems to resolve that issue precisely against Canada Post.

(2) Ignoring the result in SWP, then, at para [20] Macfarland JA quotes Laskin CJ's remarks in Saskatchewan Wheat Pool about how impossible it is for the court to determine Parliament's intention to allow a civil action when no such intention is expressed. And then proceeds in the following paragraphs of the judgement to do precisely that! Concluding with the comment in [25] that where there is a right, there must be a remedy "as a matter of common sense" .... ! As if those issues had never been considered by the centuries of jurisprudence on the tort of breach of statutory duty.

The irony of this decision is seen in the reference to Consignia v Hays (unreported decision of Jacob J in the UK Ch D, WL 1479742). That is a UK case with an almost identical situation (statutory postal monopoly, question of whether civil law could be used to enforce it). In a jurisdiction which still allows an open breach of statutory duty action, Jacob J ruled that applying the past jurisprudence of breach of statutory duty the statute did not allow a civil remedy. (The situation was unusual in that various statutory provisions had been in force over the years - prior to the period in respect of which damages were being claimed there had been an explicit civil action allowed for, and subsequent to that period the current legislation also did so. But the legislation in force during the time claimed for did not do so, and in the end Jacob J effectively said he could not assume a "Parliamentary blunder", and had to operate on the basis that the provision had been deliberately omitted.)

But in Canada, where one would have thought that the action for breach of statutory duty did not exist, the Ontario CA finds a civil remedy (and virtually says that the Canadian Parliament must have blundered in not spelling it out - see para [33] in Canada Postal Corp).

Members of this list may know that I have argued (in a commentary presented at the Emerging Issues conference in 2006) that Saskatchewan Wheat Pool was wrongly decided, and has left a "BSD-shaped" hole in Canadian civil jurisprudence which the courts are filling by either illegitimately extending the law of negligence (as Lewis has argued) or in other ways. (Anyone who would like a copy of the paper can email me separately). To my mind this latest case is a perfect example of my thesis. Faced with what seems to be an obvious gap in enforcement of a valuable statutory right, the Ontario CA has had to unconvincingly distinguish Saskatchewan Wheat Pool. While Saskatchewan Wheat Pool remains in place it seems to me that this decision is wrong.

I would of course agree with Jason that in fact statutory rights should in some circumstances create private rights. And I would agree with Lewis that Canada Postal Corp stands for the existence of a "breach of statute tort". In my humble opinion it would make more sense, since the common law already contains such a tort, and did in Canada until Saskatchewan Wheat Pool, for the SCC to revisit Saskatchewan Wheat Pool rather than embark on the torturous process (pun intended) of developing a new set of rules altogether.


Neil Foster

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 230
ph 02 4921 7430
fax 02 4921 6931


>>> Jason Neyers 3/10/07 6:42 >>>

I'm not sure that at a certain level of generality the issue is not the same: one cannot have a duty without a right. And since as a matter of the private law one does not have a right to the assistance of another, the right must come from the statute. So the issue in the negligence cases is does the statute create such a right to assistance that does not otherwise exist, the same is issue as in Canada Post v G3.

I agree that the Canada Post case does not say that there is a separate tort of statutory breach, rather it says that statutes can create private rights that can be infringed through either intentional or perhaps negligent interference.



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