Barrister and Solicitor
Legal Writing and Research
Torts - Negligence - Duty of Care
Laughlin v. Esmaeili (Ont CA, 2016)
In this case the Court of Appeal set out some principles relating to the finding of a duty of care in a negligence case:
 The Supreme Court of Canada has articulated a two-stage test for the determination of a duty of care in a case that does not fit an established category. First, the court must determine whether the facts disclose “a relationship of proximity in which failure to take reasonable care might foreseeably cause harm to the plaintiff”. If yes, there is a prima facie duty of care: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII),  3 S.C.R. 45, at para. 39; see also Reference re Broome v. Prince Edward Island, 2010 SCC 11 (CanLII),  1 S.C.R. 360, at para. 14. If the plaintiff establishes a prima facie duty, the court must consider whether any “residual policy considerations” relating to “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally” should negate or narrow the prima facie duty: Cooper v. Hobart, 2001 SCC 79 (CanLII),  3 S.C.R. 537, at para. 37.
 Proximity is a broad concept, concerning the relations between the parties, that one cannot reduce to a single characteristic, but the Supreme Court has identified “expectations, representations, reliance, and the property or other interests involved” as factors relevant to proximity analysis: Hobart, at paras. 34-35. In essence, a finding of proximity reflects a conclusion that a duty ought to be imposed in particular circumstances because it is fair and just to do so having regard to the connection between the parties.