Barrister and Solicitor
Legal Writing and Research
Torts - Negligence - Elements
Williams v. Toronto (City) (Ont CA, 2016)
The Court of Appeal usefully enumerated the 'duty of care' elements of the tort of negligence, with focus on the element of proximity, as follows:
 In order to found a duty of care in negligence, three elements are necessary: (1) The harm complained of must have been reasonably foreseeable; (2) There must have been sufficient proximity between the plaintiff and the defendant that it would be fair and just to impose a duty of care; and (3) There must be no residual policy reasons for declining to impose such a duty: Cooper v. Hobart, 2001 SCC 79 (CanLII),  3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80 (CanLII),  3 S.C.R. 562; Childs v. Desormeaux, 2006 SCC 18 (CanLII),  1 S.C.R. 643; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII),  3 S.C.R. 83. See also Anns v. Merton London Borough Council,  A.C. 728 (H.L.) and Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC),  2 S.C.R. 2.
 The Supreme Court described the proximity element in Cooper, at para. 31, and explained the starting point is to determine whether the relationship between the parties falls within a recognized category:
The question is what is meant by proximity. 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. In Cooper, at paras. 41-42, the Supreme Court prescribed a proximity analysis that requires the court to address two questions:
The first question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The first inquiry at this stage is whether the case falls within or is analogous to a category of cases in which a duty of care has previously been recognized.…  Since, as the motion judge held, at para. 60, there is no category of analogous cases in which a duty of care has previously been recognized, the focus of this appeal is on the degree of proximity and whether a new duty of care should be recognized. If the court finds a sufficient degree of proximity, then a prima facie duty of care exists, and the court next considers whether there are residual policy reasons for declining to impose such a duty on the defendant in the plaintiff’s favour. This is the third element of the Cooper analysis, which I address later in these reasons.
[If not,] [t]he next question is whether this is a situation in which a new duty of care should be recognized.
 In Hill v. Wentworth Regional Police Services Board et al, 2007 SCC 41 (CanLII),  3 S.C.R. 129, McLachlin C.J. stated that while proximity requires that the actions of the wrongdoer have a sufficiently “close and direct” effect on the victim, this does not require physical proximity (at para. 29). The absence of a personal relationship, while an “important factor to consider”, is “not necessarily determinative” (at para. 30). The court specifically invoked the words of Lord Atkin in Donoghue to the effect that the duty of care could extend to situations in which the defendant “would know” the plaintiff “would be directly affected by his careless act”.
 The plaintiff must show that “the circumstances of the relationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff's legitimate interests in conducting his or her affairs”: Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC),  2 S.C.R. 165, at para. 24, cited with approval in Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII),  3 S.C.R. 263, at para. 49.
 The Supreme Court noted in Cooper courts have determined proximity in new situations, by “looking at expectations, representations, reliance, and the property or other interests involved” in order 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” (at para. 34). However, “[t]here is no definitive list” of factors: Syl Apps, at para. 30.
 When the contact underlying the relationship arises through the operation of a statutory scheme, the statute provides the relevant context for assessing the sufficiency of proximity between the parties: Cooper, at para. 43, Edwards, at para. 9, Syl Apps, at para. 27-29, Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5 (CanLII),  1 S.C.R. 132, at para. 39.
 Chief Justice McLachlin identified three types of situation where legislation could play a role in determining whether the governmental actor owes the plaintiff a prima facie duty of care in R. v. Imperial Tobacco, 2011 SCC 42 (CanLII),  3 S.C.R. 45, at paras. 43-46. The first is where the legislation gives rise to a duty of care explicitly or by implication. The second is “where the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant. The argument in these cases is that the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care” (emphasis added). In the third type of situation proximity arises from the combination of the legislative scheme and the government’s interactions with the claimant.
 Stated summarily: “[T]he proximity inquiry will focus initially on the applicable legislative scheme and secondly, on the interactions, if any, between the regulator or governmental authority and the putative plaintiff”: Taylor v. Canada, 2012 ONCA 479 (CanLII),  111 O.R. (3d) 161, at para. 75.