Documentation:Torts/Negligence Public authorities

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Negligence of public authorities
In appropriate circumstances, government officials who cause an individual damage in the course of carrying out their functions may be sued in tort in much the same way as private persons.[1][2]

Public authority negligence liability has been the subject of much debate and uncertainty over the years. While some argue that citizens need access to tort actions to fight back against more powerful entities who cause harm,[2] others believe public actors should be regulated exclusively by public law so that the threat of tort liability does not chill the performance of public duties.[3]

The development of public authority liability

Courts have sometimes expressed wariness towards imposing negligence liability on public authorities, with the Lord Chancellor in Kent v. East Suffolk Rivers Catchment Board suggesting that since public authorities "have to strike a balance between claims of efficiency and thrift," whether they succeed in doing so is a question to be answered at the ballot box rather than in the courts.[4]

The seminal case of Anns v. Merton London Borough Council, however, confirmed that public authorities have no immunity from negligence liability at common law.[5] The House of Lords set out a two-part test for establishing a duty of care, which it applied to the public authority defendant.[5] While the Anns test was later overruled in the United Kingdom,[6] it continues to be used in Canada in its modified form: the Anns/Cooper test.[7]

As with any negligence claim, a plaintiff must not only prove an existing or novel duty of care but also that the duty was breached, the plaintiff suffered damage, and the defendant's negligence was the cause in fact and in law.[8]

Emergency services

Police sued for arrest operations
An elderly woman crossing a residential street with her walker.
This episode of the Law Pod UK podcast discusses a UK Supreme Court judgment that upheld the claim of a 74 year-old woman who sued police officers for negligence after they injured her in the course of apprehending a criminal suspect.[9]

Generally speaking, the duties police officers perform for the benefit of the public do not in themselves sound in the tort of negligence, the rationale being that "[w]hile the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk."[10] Nonetheless, this does not preclude the police from owing a private law duty of care where foreseeability of risk and a special relationship of proximity are made out.[11]

In Hill v. Hamilton-Wentworth Regional Police Services, the Supreme Court of Canada (SCC) confirmed that the police are not immune from negligence liability under Canadian law and that they may owe a duty to civilians if the elements of the Anns/Cooper test are met.[12] In Hill, the SCC found that police officers may owe a duty of care to suspects who are singled out in an investigation and that policy considerations at the second-stage of Anns/Cooper do not negate such a duty.[13]

A concern that has been raised is that the nature of police work requires officers to exercise discretion.[14] To this end, the SCC emphasized that the standard of care is not perfection but rather that of a reasonable police officer in similar circumstances, which accommodates variances in the exercise of discretion in police work.[15] So long as discretion is exercised within the range of reasonableness, there will be no breach of the standard of care.[16]

Similarly, the standard of care expected of firefighters is "one of reasonableness in the circumstances."[17] This standard takes into account the circumstances of the fire, the availability of water supplies and equipment, the number of firefighters, their experience, and the safety issues present at any particular scene.[17]

Government services

A frontal shot of the Centre Block, Canadian Parliament building, with the Peace Tower in front, Ottawa, Southern Ontario.

The SCC has recognized that Canadian common law allows governments to be held liable in negligence.[18] At the same time, the SCC has also acknowledged that the law should take into consideration governments' unique duties which require them to balance competing interests with finite resources and make difficult policy decisions.[18]

As such, the imposition of negligence liability on the government often comes down to a question of whether the allegedly negligent act is a "core policy" decision or an "operational" decision. Core policy decisions have been defined as "decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors," while operational decisions are those that "seek to implement or carry out settled policy."[19] The distinction was initially suggested by Lord Wilberforce in Anns v. Merton London Borough Council.[5] Lord Wilberforce found that operational decisions are more likely to be subject to a common law duty of care.[20]

Lord Wilberforce's operational/policy distinction has been influential over subsequent cases, including Just v. British Columbia, where the SCC found that the poor maintenance of public highways was an operational implementation and therefore open to liability.[21] However, the criteria upon which a policy decision can be distinguished from an operational implementation continues to vex lawyers and judges. The distinction was clarified in Nelson v. Marchi.[22] The SCC laid out four factors to help determine whether the nature of a decision should be classified as core policy or operational:

  1. the level and responsibilities of the decision-maker;
  2. the process by which the decision was made;
  3. the nature and extent of budgetary considerations; and
  4. the extent to which the decision was based on objective criteria.[23]

Statutory public authority immunities

While public authorities can be liable for negligence under the common law, legislation often grants certain officials express immunity from tort claims (often while preserving the vicarious liability of their government employer). For example, Alberta's Municipal Government Act provides that councillors and fire service organizations are not to be held liable for damage arising from their actions or omissions in the performance of their duties.[24]

Legislation
Alberta: Municipal Government Act, RSA 2000, c M-26, ss 535(2)–(4), 535.2.
British Columbia: Local Government Act, RSBC 2015, c 1, ss 742–743.
Manitoba: Municipal Act, CCSM c M225, ss 403, 404(1).
New Brunswick: Local Governance Act, SNB 2017, c 18, ss 178, 179.
Newfoundland and Labrador: City of St. John’s Act, RSNL 1990, c C-17, s 323.
Nova Scotia: Municipal Government Act, SNS 1998, c 18, ss 185, 300, 301, 499, 504, 513–515.
Ontario: Municipal Act, 2001, SO 2001, c 25, s 448.
Prince Edward Island: Municipal Government Act, RSPEI 1988, c M-12.1, s 250, 251.
Québec: Professional Code, CQLR c C-26, art 193; Fire Safety Act, CQLR c S-3.4, s 47.
Saskatchewan: The Municipalities Act, SS 2005, c M-36.1, ss 355, 356(1).

Class action lawsuits against public authorities

In the news
Ontario's Ministry of Long-Term Care sued for negligence during COVID-19 pandemic
The Ontario Court of Appeal affirmed the certification of a class action lawsuit against Ontario's Ministry of Long Term Care. The plaintiffs are alleging the province behaved negligently by failing to adequately protect residents of long term care homes from COVID-19.[25]
Elderly man in a red shirt sitting down while receiving a vaccine from a man kneeling next to him..

When it comes to holding public authorities liable in negligence, plaintiffs may find it beneficial to sue in the form of a class action lawsuit. This allows individuals who have suffered similar harms to put forward a united claim and hold a larger entity, such as the government, accountable.[26] A class action suit also helps promote greater access to justice, improve judicial efficiency, and incentivize defendants to modify their behaviour.[27]

For example, in Francis v. Ontario, the representative plaintiff and fellow class members sued the province for the use of administrative segregation in correctional institutions.[28] In Leroux v. Ontario, the class members sued the province for the negligent delivery of supports and services to which disabled adults are entitled under Ontario's Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act.[29]

Discussion questions

  • Is the policy/operational distinction principled? Is the SCC's guidance in Nelson (City) v. Marchi illuminating?[22]
  • In what ways can a statutory scheme affect the determination of a duty of care owed by a public authority?
  • Should the creation of immunities from tort liability be a matter for the courts or the legislature?


  1. ↑ Rowe, Malcolm & Oza, Manish (2022). "Tort Claims Against Public Authorities". Alberta Law Review. 60(1): 7–8.
  2. ↑ 2.0 2.1 Klar, Lewis N. (30 July 2013). "Torts in Canada". The Canadian Encyclopedia.
  3. ↑ Martine, Andrew Flavelle (2011). "Statutory Good-faith Immunity for Government Physicians: Cogent Policy or a Denial of Justice?". McGill Journal of Law and Health. 4(2): 87–88.
  4. ↑ Kent v. East Suffolk Rivers Catchment Board, [1940] UKHL 3 (BAILII) at para 3.
  5. ↑ 5.0 5.1 5.2 Anns v. Merton London Borough Council, [1977] UKHL 4 (BAILII) (§13.4.1.1).
  6. ↑ Murphy v. Brentwood District Council, [1991] UKHL 2 (BAILII).
  7. ↑ Rankin’s Garage & Sales v. JJ, 2018 SCC 19 (§13.4.2.3) at para 9.
  8. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2).
  9. ↑ Law Pod UK (14 February 2018). "Ep. 23: Lawsuits against the police for arrest operations". Audioboom.
  10. ↑ Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (Div. Ct.), 1990 CanLII 6611 (ONSC) (§19.5.1.1) at para 16.
  11. ↑ Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (Div. Ct.), 1990 CanLII 6611 (ONSC) (§19.5.1.1) at para 18.
  12. ↑ Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (§13.4.2.2).
  13. ↑ Hill v. Hamilton-Wentworth Regional Police Services, 2007 SCC 41 (§13.4.2.2) at paras 46–65.
  14. ↑ Hill v. Hamilton-Wentworth Regional Police Services, 2007 SCC 41 (§13.4.2.2) at para 51.
  15. ↑ Hill v. Hamilton-Wentworth Regional Police Services, 2007 SCC 41 (§13.4.2.2) at paras 68–73.
  16. ↑ Hill v. Hamilton-Wentworth Regional Police Services, 2007 SCC 41 (§13.4.2.2) at para 73.
  17. ↑ 17.0 17.1 Schouten v. Rideau (Township), 2009 ONCA 541 at para 7 citing Schouten v. Rideau (Township), 2005 CanLII 13818 (ONSC) at para 12.
  18. ↑ 18.0 18.1 Nelson (City) v. Marchi, 2021 SCC 41 (§19.5.2.2) at para 1.
  19. ↑ R v. Imperial Tobacco Canada Ltd., 2011 SCC 41 (§19.5.2.1) at paras 74, 90.
  20. ↑ Anns v. Merton London Borough Council, [1977] UKHL 4 (BAILII) (§13.4.1.1) at 5.
  21. ↑ Just v. British Columbia, 1989 CanLII 16 (SCC).
  22. ↑ 22.0 22.1 Nelson (City) v. Marchi, 2021 SCC 41 (§19.5.2.2).
  23. ↑ Nelson (City) v. Marchi, 2021 SCC 41 (§19.5.2.2) at paras 62–65.
  24. ↑ Municipal Government Act, RSA 2000, c M-26, ss 535(2)–(4), 535.2.
  25. ↑ Jones, Allison (6 February 2024). "Court allows negligence class-action suit against Ontario LTC minister to proceed". Global News.
  26. ↑ Klein Lawyers LLP (1 September 2023). "Why Are Class Action Lawsuits Important?". Klein Lawyers LLP.
  27. ↑ Watson, Garry D. (2002). "Class Actions: The Canadian Experience". Duke Journal of Comparative and International Law. 11(2): 269–271
  28. ↑ Francis v. Ontario, 2021 ONCA 197 (§19.5.2.3).
  29. ↑ Leroux v. Ontario, 2023 ONCA 314.
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