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Torts - Negligence - Duty of Care (6). Gutierrez v. Watchtower Bible and Tract Society of Canada
In Gutierrez v. Watchtower Bible and Tract Society of Canada (Ont CA, 2026) the Ontario Court of Appeal dismissed a plaintiffs' appeal, this brought against "the dismissal of their motion to certify a proposed class action against The Watchtower Bible and Tract Society of Canada".
Here the court considers the 'duty of care' in negligence:i. The claim in negligence
[51] Assessing the claim in negligence, the motion judge first noted that class actions have been certified against institutions with a direct relationship with class members, and parties overseeing such institutions. These include residential schools run by the governments or religious organizations, (Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184; Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 50; Cavanaugh v. Grenville Christian College, 2014 ONSC 290 (Div. Ct.)); residential facilities for individuals with developmental disabilities or special physical needs (Dolmage v. Ontario, 2010 ONSC 1726, leave to appeal to Div. Ct. refused 2010 ONSC 6131; Seed v. Ontario, 2012 ONSC 2681)); prisons (Francis v. Ontario, 2018 ONSC 5430 and 2020 ONSC 1644, aff’d 2021 ONCA 197); and high security psychiatric hospitals (Banman v. Ontario, 2023 ONSC 6187).
[52] The motion judge observed that, in those cases, “it almost goes without saying that an institution caring for children has a duty of care not to expose them to harm.” But he found that the circumstances of this case were markedly different:[T]he putative class members are not the objects of the institution that is the Canada Branch. The Canada Branch does not operate a school, an orphanage, a residence, a choir, a sports program, a health clinic, etc. for children. The Canada Branch and indeed Jehovah’s Witnesses’ congregations do not provide any services for the children of Jehovah’s Witnesses. [53] The motion judge accordingly concluded that the appellants were alleging a novel duty of care. Having considered whether the facts alleged could give rise to a duty of care, he concluded that they could not and hence that the appellants’ claim would obviously fail.
[54] A prima facie duty of care will be recognized only if the facts alleged disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45, at para. 39; Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161, at para. 72. The motion judge found that no prima facie duty of care could arise in this case.
[55] I see no error in the motion judge’s reasoning. He did not engage in a merits-based analysis to assess whether the amended statement of claim disclosed a cause of action in negligence. On the facts pled, he found that it is plain and obvious that the negligence claim cannot succeed, because the amended statement of claim does not allege a relationship between the Society and the perpetrators of abuse which would ground a duty of care. I agree with his reasoning on this issue.
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[64] Spiritual authority alone is insufficient to ground a duty of care. I agree with the motion judge that it is not reasonably foreseeable that a religious order that is not alleged to assume any direct responsibility for the wellbeing of children would nonetheless be liable for failing to safeguard those children from sexual assaults perpetrated by adult congregation members outside of places owned, operated or overseen by the order and committed outside the context of activities organized, directed or overseen by them. The claim likewise does not survive a proximity analysis.
[65] There are parallels between this case and Cavanaugh, an action for the abuse of students who attended Grenville Christian College, a private religious boarding school. The motion judge in that case dismissed the motion to certify against both the College and the Anglican Diocese associated with it. While the Divisional Court held that a class proceeding should be certified in the claim against the College, this court affirmed the dismissal of the motion to certify against the diocese: Cavanaugh v. Grenville Christian College, 2013 ONCA 139, 360 D.L.R. (4th) 670, at para. 6; see also Cavanaugh v. Grenville Christian College, 2014 ONSC 290 (Div. Ct.).
[66] In Cavanaugh, this court held that the College was operationally autonomous from the Diocese and that the Diocese could be neither directly nor vicariously responsible for what happened at the school. Justice Doherty noted that the court could give no weight to the bald assertion that the Diocese knew or ought to have known about the abuse absent allegations of material fact to support it: Cavanaugh, at para. 73. Moreover, even if the pleading could be amended to allege such facts, the relationship between the parties, as disclosed by the amended statement of claim, did not warrant imposing a duty of care on the Diocese. As Doherty J.A. observed at paras. 75 and 76:The pleading does not allege any direct relationship between the Diocese and the appellants. The appellants do not plead that the Diocese made any representations or did anything that the appellants in any way relied on at any time either before or while they were students at Grenville Christian College. Indeed, the pleadings do not allege any conduct of any kind by the Diocese toward the appellants, or any contact in any way between the Diocese and the appellants or their parents. The absence of any direct relationship between a plaintiff and a defendant is certainly not determinative of the existence of a duty of care. It is, however, an important factor which can point strongly away from a finding of proximity….
Not only does the pleading not allege any direct relationship between the Diocese and the appellants, it says virtually nothing about any relationship between the Diocese and Grenville Christian College. There is no allegation that the Diocese had any control over or involvement with the school’s property, finances, staff, enrollment, curriculum or day-to-day management. Nor does the pleading allege a more general supervisory power as might reside in a Board of Governors. [Citations omitted.] [67] The appellants’ relationship to the Society and the Canada Branch, as described in the pleading, is even more remote than the relationship between the plaintiffs and the Diocese in Cavanaugh. . His Majesty the King in Right of Ontario v. Temelkovski
In His Majesty the King in Right of Ontario v. Temelkovski (Div Ct, 2026) the Divisional Court allowed a defendant Crown appeal, that brought against a decision "dismissing the Appellant’s motion under Rule 21.01(1)(b) ['no reasonable cause of action or defence'] of the Rules of Civil Procedure to strike a negligence claim against it".
Here the court considers the appellate SOR for negligence 'duty of care' issues:[40] .... Further, the standard of review to be applied to a motion judge’s decision on duty of care is that of correctness because the issue of whether the Appellant owed the Respondents a duty of care is a question of law. See 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 at para. 24 (“Maple Leaf”). . His Majesty the King in Right of Ontario v. Temelkovski
In His Majesty the King in Right of Ontario v. Temelkovski (Div Ct, 2026) the Divisional Court allowed a defendant Crown appeal, that brought against a decision "dismissing the Appellant’s motion under Rule 21.01(1)(b) ['no reasonable cause of action or defence'] of the Rules of Civil Procedure to strike a negligence claim against it".
The court consider duty of care in negligence law, here as it relates to public authority defendants:[45] When allegations of negligence are made against a public authority, it is appropriate to examine the negligence claim at the pleading stage to determine whether there is any possibility that a duty of care can be found to exist: see Kassian Estate v. Canada (Attorney General), 2015 ONCA 544 at para. 22.
[46] The Anns/Cooper test provides a unifying framework to determine when a duty of care arises, including for allegations of negligence against government officials. The framework applies differently depending on whether the plaintiff’s claim falls within or is analogous to an established duty of care or whether the claim is novel because proximity has not been recognized before. See Nelson (City) v. Marchi, 2021 SCC 41 at para. 16 (“Nelson”). It has not been argued in this case that the Respondents’ claim falls within an established duty of care.
[47] In novel duty of care cases, the full two-stage Anns/Cooper framework applies. Under the first stage, the court asks whether a prima facie duty of care exists between the parties. The question at this stage is whether the harm was a reasonably foreseeable consequence of the defendant’s conduct, and whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. See Nelson at para. 17.
[48] Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered. See Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 at para. 21 (“Rankin”).
[49] When determining whether reasonable foreseeability is established, the proper question to ask is whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged. The foreseeability question must be framed in a way that links the impugned wrong to the harm suffered by the plaintiff. See Rankin at paras. 24-25.
[50] The parties’ focus in this case was on the proximity requirement. Proximity arises in those relationships where the parties are in such a “close and direct” relationship that it would be just and fair having regard to that relationship to impose a duty of care in law upon the defendant. See Nelson at para. 17. The proximity inquiry considers the expectations, representations, reliance, and the property or other interests involved as between the parties. See Rankin at para. 23.
[51] When the relationship occurs in the context of a statutory scheme, the governing statute is a relevant context for assessing the sufficiency of the proximity between the parties. Where an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity. Such a conflict exists where the imposition of the proposed duty of care would prevent the defendant from effectively discharging its statutory duties. A statutory immunity provision may also be relevant. See Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 at paras. 27-29 (“Syl Apps”) and River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326 at paras. 77, 79; application for leave to appeal to the Supreme Court of Canada dismissed: 2009 CanLII 61385 (S.C.C.).
[52] If there is sufficient proximity to ground a prima facie duty of care, it is necessary to proceed to the second stage of the Anns/Cooper test, which asks whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care. The second stage of the test raises questions relating to the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. See Nelson at para. 18.
[53] Policy is relevant at both the first stage – in relation to proximity – and at the second stage – in relation to residual policy concerns – of the Anns/Cooper test. At the proximity stage, the relevant questions of policy relate to factors arising from the particular relationship between the plaintiff and the defendant. In contrast, residual policy considerations are concerned with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. See Syl Apps at para. 32.
[54] An important consideration in this case is that the claims are against the government. There are generally two situations that may create a prima facie duty of care in claims against a government defendant: (1) where a duty of care arises explicitly or by implication from the statutory scheme, or (2) where a duty of care arises from specific interactions between the claimant and the government and is not negated by statute. Proximity might also be based both on the government’s statutory duties and interactions between the parties. See Imperial Tobacco at paras. 43, 45, 46, and Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410 at para. 41; application for leave to appeal to the Supreme Court of Canada dismissed: 2022 CanLII 10379 (S.C.C.).
[55] Although the Respondents’ submissions were mostly focused on the specific interactions between them and the Appellant, the type of situation that has been pleaded in the FASC appears to be the third one, i.e., the duty of care is alleged to arise from both the government’s statutory duties and the interactions between the Respondents and the government.
[56] The argument in the first kind of cases is that the statute itself creates a private relationship of proximity giving rise to a prima facie duty of care. However, it is often difficult to find that a statute creates sufficient proximity to give rise to a duty of care. This is because even though some statutes may impose duties on state actors with respect to particular claimants, statutes are more often aimed at public goods. In such cases, it is usually difficult to infer that the legislature intended to create private law tort duties to claimants. See Imperial Tobacco at para. 44.
[57] In cases based on interactions between the claimant and the government, the argument 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. While the factor that gives rise to a duty of care is the specific interactions between the government actor and the claimant, the governing statute is still relevant to the analysis. For instance, if a finding of proximity would conflict with the state’s general public duty established by the statute, the court may hold that no proximity arises. See Imperial Tobacco at para. 45.
[58] A regulator’s public statements acknowledging its public duties and obligations and its commitment to the performance of those duties, combined with the reliance on those public statements by members of the public affected by the performance of those duties, cannot, standing alone, create a relationship of proximity between individual plaintiffs and the regulator. In other words, a person’s reliance on public representations that the regulator will do its public and statutory duty cannot by itself create a private law duty of care. See Taylor v. Canada (Attorney General), 2012 ONCA 479 at para. 105 (“Taylor”).
[59] Further, ordinary day-to-day regulatory contacts between a government actor and a regulated person are usually insufficient to create a proximate relationship. See Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579 at para. 51; application for leave to appeal to the Supreme Court of Canada dismissed: 2023 CanLII 36978 (S.C.C.). In order to give rise to a private law duty of care, the government actor must have done something more than fulfilling its statutory role in its specific interactions with the plaintiff. This was recognized by the Divisional Court in Eisenberg v. City of Toronto, 2021 ONSC 2776 at para. 52 (“Eisenberg”):[…] In the cases where courts have found that pleaded interactions between a public authority and a plaintiff were sufficient to give rise to a private law duty of care, the courts have found that the public authority has done something more than fulfilling its statutory role. Where the interactions fall within the scope of the public authority’s statutory role, without anything more, those interactions cannot form the basis for finding that the regulator owes a private law duty of care to parties subject to the regulatory oversight. As held by the motion judge, this principle was clearly articulated in Wu v. Vancouver (City), 2019 BCCA 23, at para. 65:While the relationship between the parties can be described as “direct and transactional”, this does not materially advance the proximity analysis because such a relationship is both inherent in and an inevitable and necessary part of the regulatory framework, in which individuals apply for permission to undertake a certain activity. The same applies to virtually any licensing or permitting process. I do not think that the inevitable reality of a specific individual making an application to a regulator, and thereby entering into a direct transactional relationship with the regulator, advances the argument that proximity exists in the sense that the regulator has come under an obligation to have particular regard for the interests of the applicant beyond the regulator’s obligation to fulfil his or her statutory duties. [60] Thus, communications and consultations that are generic and inherent in the regulatory framework are not indicative of a relationship of proximity. See Wu v. Vancouver (City), 2019 BCCA 23 at paras. 58 and 71 (“Wu”); application for leave to appeal to the Supreme Court of Canada dismissed: 2019 CanLII 55721 (S.C.C.), and Flying E Ranche Ltd. v. Attorney General of Canada, 2022 ONSC 601 at para. 615, aff’d on other grounds by 2024 ONCA 72; application for leave to appeal to the Supreme Court of Canada dismissed: 2024 CanLII 96606 (S.C.C.).
[61] In the absence of a proximate relationship, there is no duty of care and no need to consider second-stage policy considerations. The question of whether the challenged decision was of an operational or policy nature belongs at the second stage of the test and is not relevant at the first-stage consideration of proximity. Operational negligence, in the absence of a proximate relationship, is not sufficient to give rise to a duty of care. See Cooper v. Hobart, 2001 SCC 79 at para. 38; Drady v. Canada (Health), 2008 ONCA 659 at para. 34 (“Drady”); application for leave to appeal to the Supreme Court of Canada dismissed: 2009 CanLII 19876 (S.C.C.); and Attis v. Canada (Health), 2008 ONCA 660 at para. 44 (“Attis”); application for leave to appeal to the Supreme Court of Canada dismissed: 2009 CanLII 19874 (S.C.C.).
[62] Similarly, unless the element of proximity is present, public authorities are not liable for losses simply because a legislated standard was not enforced. See Vlanich v. Typhair, 2016 ONCA 517 at para. 30 (“Vlanich”).
[63] A mere breach of a statutory duty does not constitute negligence, and the law does not recognize an action for negligent breach of statutory duty against a government authority for negligently acting outside or contrary to the law. The proper remedy for breach of statutory duty by a public authority is judicial review for invalidity. See Holland v. Saskatchewan, 2008 SCC 42 at paras. 8-9, 11 (“Holland”). At paras 64-80 the court assesses these principles on the facts and pleadings of the case.
. Paradis Honey Ltd. v. Canada (Agriculture and Agri-Food) [SOR]
In Paradis Honey Ltd. v. Canada (Agriculture and Agri-Food) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the dismissal of a class action grounded in negligence where the appellants alleged that "the Canadian Food Inspection Agency (CFIA) had breached its private law duty of care by prohibiting the importation of live honeybee packages from the continental United States (US) after 2006, thereby causing them economic harm".
Here the court considered the appellate SOR for negligence 'duty of care' issues:[49] It is well established that whether a defendant owed a duty of care to a plaintiff is a question of law, to be assessed on a correctness standard: Marchi at para. 71; 1688782 Ontario Inc. v. Maple Leaf Foods, 2020 SCC 35 at para. 24; Rankin at para. 19. As A.M. Linden et al. wrote in Canadian Tort Law, 10th ed., Toronto, LexisNexis Canada, 2015 at §9.57, duty in tort law is "“a general notion describing a class or type of case, not a particular fact situation”". Therefore, both proximity of any given relationship and reasonable foreseeability of injury raise questions of law. That being said, findings of fact underlying the determination of a duty of care are entitled to deference. "“[W]hether those facts meet the legal test of core policy immunity and, by extension, whether a duty of care arises, is a question of law and must be correct”" (Marchi at para. 71). . T.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd.
In T.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd. (Ont CA, 2026) the Ontario Court of Appeal allowed an OLA-negligence appeal, this brought against the dismissal of an action where the court held that "the owner of the land owed no duty to warn users" - here to "stay in the centre of the bridge".
Here the court considers negligence 'standard of care', finding that the trial court erroneously conflated it with it's causation analysis:1. The Lack of Findings on the Standard of Care and Defining the Duty to Warn
[37] As noted above, the trial judge considered causation to be the critical issue, with the result that she approached her determination of liability by assuming without deciding that the first three elements required to establish negligence had been met. She then conducted an analysis to determine whether the conduct of the defendant was the legal and proximate cause of the accident. She did so for efficiency: if the conduct of the defendant was not the cause of the accident, as the trial judge stated, “the inquiry was over.”
[38] In so doing, the trial judge made a reviewable error in the manner in which she first defined the scope of the duty in the circumstances of this case, and then in concluding there was no such duty here.
[39] She then applied that erroneous definition to the causation analysis which led her to conclude that she did not need to make findings with respect to the other elements relevant to a claim of negligence and breach of s. 3(1) of the OLA.
[40] It was common ground at trial that there was no warning of any kind given, either by way of signage posted at the bridge or by way of direct communications to the appellant or its driver.
[41] The basis for the finding of the trial judge that the absence of any warning was not a factual cause of the accident is found at paragraph 96 of the reasons:However, I am not prepared to find that the absence of warnings was a factual cause of the accident. A sign warning Mr. Denyes of the risk of failing to stay in the centre of the Bridge would not have prevented the accident since Mr. Denyes already knew he had to keep the Sprayer centred. Therefore, I find that signs warning of the need to stay in the centre of the Bridge or that the overhang was not supported were not required by s. 3 of the OLA in this case. [42] In my view, the trial judge committed a legal error by conflating causation with the standard of care and effectively failing to perform a standard of care analysis. Once she decided that the presence of signage would not have prevented the accident, she determined that signage was not required to meet the standard of care, and therefore, there was no breach of that standard.
[43] This analysis was an error. The focus of the standard of care analysis must be on the conduct of the bridge owner and what duty he or she owes to all users of the bridge. Using causation as a proxy for the standard of care uses the conduct of one particular injured party to determine the scope of the bridge owner's general duty owed to all users. A lack of causation in one particular case does not mean there was no breach of the standard of care.
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