A British Columbia court has opened the door to a new duty of care for breach of statutory duties. In the recent decision of Frazier v. Kendall, the Supreme Court of British Columbia refused to strike a claim against the Canadian government for injuries sustained by the plaintiff from an explosion.

Plaintiff sued Canada for negligence arising from injuries sustained in explosion

On August 7, 2018, the plaintiff was shopping at an automotive store in British Columbia when an explosion occurred in the residence next door. The residence had explosives stored inside, which were detonated by a fire that broke out on the roof during repairs. The plaintiff claimed to have suffered physical and mental injuries from the explosion.

The plaintiff sued the owner and occupiers of the residence, the roofers whose repairs allegedly started the fire, and the unidentified possessors of the explosives.

She also sued the Attorney General of Canada (“Canada”) on the grounds of negligence, stating Canada breached its private law duty of care to her in its administration of the Explosives Act and its regulations. Her claim against Canada was brought pursuant to the Crown Liability and Proceedings Act and was based on the federal Minister of Natural Resources’ responsibility for administering the Act and regulations.

The plaintiff claimed that Canada knew, or ought to have known, that the explosives posed a risk to public safety, could cause serious injury and loss to persons or property. Further, she alleged Canada had failed to reasonably carry out its statutory powers and requirements under the Explosives Act and regulations.

Canada argued no duty of care was established and requested the plaintiff’s claim be struck out

Canada filed an application to strike the negligence claim against it on the grounds the claim did not disclose a cause of action. It submitted that, as a matter of law, it was plain and obvious that the facts did not demonstrate the requisite proximity to establish a duty of care.

The issue before the court was, therefore, whether a public regulator owes a private law duty of care to a member of the public whose injury was caused by the regulator’s failure to meet its statutory obligations.

Canada obligated under the Explosives Act to protect the public and those in the vicinity of explosives

The court noted the Explosives Act and its regulations regulate the manufacture, handling, transportation, and storage of explosives. The legislation’s primary purpose is to protect the public, as well as those who work with explosives.

Canada is responsible for the regulation of explosives through several duties under the Explosives Act, including explosives licensing and permits, inspections, and orders to address dangerous situations. The Act’s regulations also set out extensive obligations, prohibitions, and precautions for those carrying out activities involving explosives as well as those in the vicinity.

Court set out framework to establish duty of care

The court explained its rules of procedure require a claim to be struck if the facts as plead, if true, obviously disclose no reasonable cause of action. It explained that Canadian law does not currently recognize a tort of breach of statutory duty, i.e., there is no general duty of care imposed on government officials to follow the laws that authorize and obligate them to perform their duties.

Establishing such a duty of care, the court noted, requires the application of a legal test commonly referred to as the “Anns/Cooper” test. The test was originally set out by the House of Lords in their 1978 decision in Anns v. Merton London Borough Council and was subsequently refined by the Supreme Court of Canada in Cooper v. Hobart in 2001.

The Anns/Cooper test has three components to be applied by courts. Firstly, the court considers whether the duty in question has been recognized in similar or analogous circumstances. If so, a prima facie duty of care is presumed. If not, the court examines whether the parties’ relationship involves sufficient foreseeability and proximity to justify finding a novel prima facie duty of care. Finally, if a prima facie duty of care is found via either path, the question becomes whether the duty should be limited or negated by other policy considerations.

Court refused to strike plaintiff’s claim against Canada

In its application of the Anns/Cooper test, the Supreme Court of British Columbia considered whether the plaintiff’s claim fell within a recognized duty of care. In arguing that it did, the plaintiff relied on previous cases where courts found a duty of care in the context of a mine explosion and building inspections. The court reviewed the cases and found the plaintiff’s claim failed the first step of the Anns/Cooper test as the cases presented did not represent a duty of care in analogous circumstances.

On the next step of the legal test, however, the court ruled there was a reasonable prospect of establishing a novel duty of care for multiple reasons:

  • Assuming the facts of the plaintiff’s claim are true, the explosives regulator knew or ought to have known of the existence of unsafe explosives and failed to address the dangerous situation;
  • The legislation does not include a broad immunity or compensation scheme;
  • There is some arguable support for this type of duty of care in recent case law; and
  • There is no policy reason to strike the plaintiff’s claim as placing a duty upon Canada to take reasonable care of those in the vicinity of explosives arguably imposes no unreasonable interference on its regulatory powers and duties under the Explosives Act and regulations.

The court, therefore, dismissed Canada’s application to strike the plaintiff’s claim on the basis that it had at least a reasonable prospect of success at a trial. While this case has not yet reached a final determination, the court’s decision opens the door to the potential recognition of a novel duty of care and tort of breach of statutory duty.

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