Barrister and Solicitor
Legal Writing and Research
Torts - Negligence - Duty of Care - Public Authority
Vlanich v. Typhair (Ont CA, 2016)
In this case the Court of Appeal was faced with determining whether a municipality owed a duty of care to an injured party in a motor vehicle accident case, and commented as follows on the issue:
(i) The Anns/Cooper test
 It is common ground that whether a public authority such as the Township owes a private law duty of care to an individual or to a class is determined by applying the two-part test first announced by the House of Lords in Anns v. Merton London Borough Council,  A.C. 728, at pp. 751-52, and refined by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79 (CanLII),  3 S.C.R. 537, at paras. 30-31:
At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.
 The Supreme Court went on to explain what was meant by “proximity”, the element necessary to establish a duty of care in addition to reasonable foreseeability of harm, at para. 31:
Two things may be said. The first is that "proximity" is generally used in the authorities to characterize the type of relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances.
 Proximity is determined by "looking at expectations, representations, reliance, and the property or other interests involved" to "evaluate the closeness of the relationship between the plaintiff and the defendant" and by asking "whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant": Cooper, at para. 34.