Greetings,

 

I’ve come to an impasse in understanding the tort liability of public authorities under current Canadian law for breach of statutory duty, so I’m turning to the ODG... Thoughts, citations, etc. (either to me or the list) would be sincerely appreciated.

 

I’m wondering to what extent Holland v. Saskatchewan (SCC 2008) really immunizes public authorities from tort actions in relation to their statutory duties (i.e., breach or non-fulfillment)? Isn’t full immunity arguably an overreach from R v. Saskatchewan (SCC 1980)? The latter as I understand it held that there was no implied provision in statute which permitted a cause of action in tort to arise from a breach of statute alone. To me, this means that a breach of statute is not sufficient basis for a tort claim. Other elements required under common law must be present for a duty of care to be found.

 

But it seems (and I may be mistaken) that under Holland, negligence claims in relation to breaches of statutory duties are simply not permitted, full stop (para. 9). Does this mean that the only legal remedy available when public authorities act in excess of their statutory duty is judicial review for invalidity? What about the scenario when there is a failure by a public body to fulfill its statutory duty? Is there no possibility that this failure may fit within a claim in negligence? (Albeit one that needs to fulfill additional common law elements of the tort, since it cannot be based on breach of statute alone?)

 

To me it seems ironic that public authority actions in relation to statutory powers would be more exposed to tort liability that public authority actions in relation to statutory duties. Shouldn’t a higher standard of conduct be required with respect to the fulfillment of duties rather than actions taken subject to discretionary powers? On the other hand, I suppose that separation of powers concerns may be relevant here.

 

Thanks very much.

 

Best regards,

 

Robin Hansen

 

The Queen (Can.) v. Saskatchewan Wheat Pool [1983] 1 SCR 205 http://scc.lexum.umontreal.ca/en/1983/1983scr1-205/1983scr1-205.html

Holland v. Saskatchewan [2008] S.C.J. No. 43, http://scc.lexum.umontreal.ca/en/2008/2008scc42/2008scc42.html

 

See, e.g., Attis v. Canada (Minister of Health) [2008] O.J. No. 3766 Ontario Court of Appeal:

 

38     Whether a particular case falls within a recognized category is not always straightforward. Cooper, at para. 36, lists recognized categories of care. Certain categories seem to fit the circumstances of this case, at least when viewed broadly. For example, this case presents allegations of governmental operational negligence, physical harm to the plaintiffs, and a breach of a duty to warn. These relationships are listed in Cooper as recognized categories. On the other hand, a category of government immunity from liability for a breach of a statutory duty was also recognized in Holland v. Saskatchewan, [2008] S.C.J. No. 43 and The Queen in Right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.

 

Robin F. Hansen

Assistant Professor, College of Law

University of Saskatchewan

Saskatoon, Canada