Date: Tue, 2 Oct 2007 20:47

From: Lewis Klar

Subject: Breach of Statute in Canada

Thanks Jason. Very interesting case.

Two quick points.

I think we have to agree that the issue in this case is very different from that in Cooper and all of the recent public authority liability cases. Those cases were negligence cases which raised the issue of whether a private law duty of care based on proximity could be based on an interpretation of statutory provisions. They were negligence claims. My argument is that proximity and private law duties of care for negligence actions do not arise from statutes. They arise from relationships which are recognized by the common law as proximate relationships. I do not think there is anything in the Post Corp case which disputes this.

Second, this case does stand for the recognition of an independent cause of action for breach of statute - a separate tort, distinct from negligence. I think that Dickson J.'s admonition in Saskatchewan Wheat Pool that courts should not add compensation provisions or liability provisions to quasi-penal statutes still makes good sense. But if we want a breach of statute tort, courts are going to have to develop the jurisprudence to determine when it exists and who can sue because of it. Maybe the SCC will do that in the Holland appeal. Maybe we are now accepting the English law on this matter. We will see.

Lewis

Dear Colleagues:

Those of you interested in the effect of statutes in private law will find the decision of the Ontario Court of Appeal in Canada Post Corporation v. G3 Worldwide (Canada) Inc very interesting. The case centers around whether CP could seek an injunction and gain-based damages from a company which violated its letter carrying monopoly.

The result and the reasoning are both quite consistent with the view (which I think is right) that Canadian statutes create private rights, even if the Act has criminal sanctions, provided that the recognition of such private rights is not inconsistent with the public rights (Cooper v Hobart) or the legislation has not occupied the field (Bhadauria). A further nail in the Saskatchewan Wheat Pool coffin (or at least in one view of that case)?

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