Date: Mon, 16 Jun 2008 12:25

From: Barbara Legate

Subject: Novel Duty of Care?

On the insurance issue, I doubt if there was much thought about the policy decisions behind taking the appeal; the implications for the industry of this case being successful are huge. I am baffled that one homeowner's insurer would take on another and seek to widen the ambit of its liability in other settings. Given the relatively low amount at stake, I also doubt if the decision to pursue the action in the first place went very high up the chain of authority.

Barbara Legate

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-----Original Message-----
From: Russell Brown  
Sent: Friday, June 13, 2008 2:02 PM
To: Lewis KLAR
Subject: Re: Novel Duty of Care?

Dear Tsachi,

I agree with Lewis - the plaintiffs were clearly going after the parents' homeowner insurer. As to the policy considerations, there was a fair bit of commentary immediately after Cooper v. Hobart was decided to the effect that all the policy heavy-lifting was going to eventually occur at stage 1, and that stage 2 would probably just fall into disuse. (In fact, this was suggested by the nature of the policy considerations considered at stage 1 in Cooper itself). I agree that the question of whether we should even look at "policy" considerations (or whether we can separate policy from non-policy considerations) are probably not easily resolved, at least over a few emails. Irrespective, however, of where you or I stand on that particular divide, I agree with your point about "proximity" (as conceived at the SCC at least) swallowing everything up, although perhaps we should have seen it coming (see McLachlin J.'s description of "proximity" in CNR v. Norsk).

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