2) Negligence

Most governmental activities and services are carried out under permissive or enabling statutes. The legislation does not normally impose a duty to carry out certain tasks or services. It is written in terms of what the government or public authority may do, not what it must do. The legislation is empowering rather than mandatory because the need and demand for governmental services are infinite and the resources and money of government are finite. Statutory powers permit political and discretionary decisions to be made to determine the allocation of scarce resources, the priority of competing needs, and the manner in which governmental services are delivered. Yet, in a time of activist government, there is no shortage of private citizens alleging that they would have avoided certain losses if the government had acted differently in respect of a matter that has directly and adversely affected them. One vehicle to voice a complaint and possibly secure a remedy for the alleged inadequacy of governmental services is an action in negligence. It may be argued that the government owed a private law duty of care to prevent the loss suffered by the plaintiff. This has required the courts to address the relationship between the private law of negligence and the competent provision of governmental services to its citizens. Fitting the duty of care into this matrix of legislation, political realities, and discretionary decision making has proved to be a difficult task.

Modern Canadian law on governmental liability for the exercise or failure to exercise statutory powers begins with the Supreme Court decision in Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality of). [Note 128: [1971] S.C.R. 957.] In that case, the defendant municipality passed a zoning by-law to permit the plaintiff to construct an apartment block. In other proceedings, the by-law was quashed because of procedural irregularities in the legislative process. This disrupted the plaintiff's plans and caused financial loss. The action against the municipality alleged a failure to take care in the passage of the by-law. The Court held that no duty of care was owed to any private citizen in respect of the legislative, judicial, or quasi-judicial functions of government and, since the claim attacked the defendant's legislative and quasi-judicial functions relating to the passage of by-laws, no liability was imposed. On the other hand, it was recognized that a duty of care may be imposed in respect of the administrative, ministerial, or business actions of government where governmental actions more closely resemble private sector activities. The Court's decision in respect of legislative and judicial functions and the general approach of categorizing the governmental function that is the subject matter of the litigation have not changed. There has, however, been a further refinement in the classification of the administrative functions of government.

It was introduced by the House of Lords in Anns v. Merton London Borough Council. [Note 129: Above note 70.] Lord Wilberforce suggested that a distinction must be drawn between administrative functions that are essentially policy or planning in nature, which would not normally be subject to a private law duty of care, and operational matters that normally would be subject to a duty of care. In many situations it is difficult to draw this distinction because governmental decision making and activities often involve both policy considerations and operational conduct. Nevertheless, beyond the margins, the general idea is clear enough. Policy and planning decisions are discretionary decisions normally made at a high level of government dealing with the allocation of resources and the determination of priorities in respect of governmental services. The decisions involve economic, social, and political considerations in deciding which statutory powers will be exercised, when they will be exercised, where they will be exercised, and how they will be exercised. These are uniquely governmental decisions and the remedy for bad government lies in the ballot box, not in the courts. In due course, however, these policy decisions are implemented and governmental services are delivered to the public at an operational level. A private law duty of care may be owed in the performance of these operational functions. [Note 130: 1 The policy/operational dichotomy is not applicable where the governmental agency is subject to a legislative duty. Nevertheless, the status of the defendant and its financial resources may be relevant in applying the standard of care. See Kennedy v. Waterloo (County) Board of Education (1999), 45 O.R. (3d) 1 at 6-11 (C.A.), Feldman J.A.]

This framework of policy and operational functions of government was adopted by the Supreme Court in Neilsen v. Kamloops (City of), [Note 131: [1984] 2 S.C.R. 2.] which dealt with a municipality's failure to enforce its by-laws and prevent the completion of a house with defective foundations. A majority of the Court imposed liability on the ground that the matter was largely operational. It also commented on the issue of policy decisions and held that policy decisions are not entirely immune from judicial scrutiny. First, there may be liability for the total failure of the governmental body to consider whether or not the statutory power should be exercised. The holder of the statutory power must seriously address that question. Second, there may be liability for a bad-faith exercise of discretion. This may arise where a decision is made for an improper reason or the decision is one that no reasonable person would have made. Beyond these two instances, however, a policy decision is not justiciable in negligence law.

At each end of the spectrum of governmental functions, the policy/ operational dichotomy presents few difficulties in the tort of negligence. If, for example, the pith and substance of the plaintiff's case is that she has suffered injuries because the government has failed to provide sufficient funds to upgrade a rural highway or because government has failed to fund expensive diagnostic equipment owing to a need to cut back health-care expenditure, she is likely to be unsuccessful. If, on the other hand, the claim centres on injuries caused by the incompetent operation of road construction equipment or by the failure to correctly interpret medical testing at a hospital, it may well succeed. There can be little doubt, however, that at the margins, the line between policy and the operational matters is elusive.

The difficulties are exacerbated by some unevenness of decision making at the Supreme Court level. A useful illustration of this can be found in the comparison of three cases: Barratt v. North Vancouver (District of), [Note 132: [1980] 2 S.C.R. 418 [Barratt].] Just v. British Columbia, [Note 133: [1989] 2 S.C.R. 1228 [Just].] and Brown v. British Columbia (Minister of Transportation & Highways). [Note 134: [1994] 1 S.C.R. 420[Brown].] In each of these cases, a person was injured or killed as a result of an alleged failure of the defendant municipal or provincial government to detect and remedy dangerous highway conditions.

In Barrett the plaintiff was injured when he rode his bicycle into a pothole that had not been fixed by the defendant municipality. The plaintiff argued that the defendant's inspection and repair system was inadequate to discover and address the danger that had caused his injury. The Supreme Court held that the system of inspection and repair was determined by "policy" decisions involving the weighing of costs, benefits, and priorities, which could not be the subject of a private law duty of care to the plaintiff. The Barrett decision signalled a broad interpretation of the term "policy" that was quite protective of public authorities. In Just the defendant province's system of inspection for the discovery and removal of unstable rocks above highways failed to detect a boulder that broke loose and crashed onto the plaintiff's automobile, injuring him and killing his daughter. The lower courts confidently held that the defendant's inspection system was the result of policy decisions and found for the defendant. A majority of the Supreme Court disagreed with that characterization and ordered a new trial to determine if there was negligence. In his leading judgment, Cory J. did not change the conceptual framework of liability, but he did suggest a much narrower interpretation of policy decisions by adopting the more restrictive term true policy decisions and by suggesting that policy decisions normally involve the broad allocation of funding at a high level of government. The system of inspection that the province had implemented was open to judicial scrutiny as an operational matter. He noted, however, that

[t]he manner and quality of an inspection system is clearly part of the operational aspect of a governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment. [Note 135: Just, above note 133 at 1245.]

His judgment in Just appeared to show a clear preference for a much wider judicial scrutiny of governmental action [Note 136: In Just, the Barratt case was described as one where the Court found the municipality's system to be reasonable. That is not an interpretation that any previous judge had given to Barratt.] and a desire to rely on the flexibility of the standard of care to avoid placing an undue burden on government. [Note 137: At the re-trial the defendant was found liable: see Just v. British Columbia (1991), 60 B.C.L.R. (2d) 209 (B.C.S.C.).] Brown dealt with an automobile accident caused by black ice on a British Columbia highway. At issue was the sufficiency and operation of the defendant's system to deal with such dangers on the highway. The province was, at the time of the accident, operating its summer system of highway inspection and maintenance, which, in comparison to its winter system, involved fewer resources, less equipment, fewer personnel, and reduced hours of operation. The plaintiff challenged the reasonableness of using the summer system in early November. Cory J., who wrote the main judgment, noted that policy decisions are not necessarily made at the highest level of government. It is the nature of the decision that is the controlling factor and the decision to operate under a summer schedule was a true policy decision. It involved political, economic, and social factors and was not subject to a duty of care. The Brown case indicates some resilience from the Just decision but Cory J. gave no indication that any change was intended. [Note 138: See also Swinamer v. Nova Scotia (A.G.), [1994] 1 S.C.R. 445.]

These three decisions are not isolated instances of uncertainty at the margins of the policy/operational divide. A review of recent cases led Professor Klar to conclude bleakly that "[t]here is no apparent pattern in the judgments or any way to predict whether a court will decide that a specific governmental activity is a matter of policy or operations." [Note 139: L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) at 235 [emphasis omitted].] There is no quick fix to this problem. The conceptual structure of the policy/operational dichotomy appears to be inadequate to draw a bright line between those activities of government which are justiciable in a negligence action and those which are not. This leaves a good deal of room for the exercise of judicial discretion according to the circumstances of the individual case.

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE

I. PREVENTION OF CRIMINAL VIOLENCE

The tort process has not proved to be effective in responding to the public's concern about criminal violence. Those who suffer injuries as a result of such violence normally have an action in battery [Note 140: Battery lies for the intentional infliction of bodily harm to the plaintiff. See chapter 4.] against the criminal but the prospects for recovering any money are not good. The criminal may never be apprehended and, if he is apprehended and sued, it is unlikely that any judgment will be paid. The victims of criminal violence may receive some indemnification for related expenses, lost income, and pain and suffering from the criminal injuries compensation schemes but that does not provide the full compensation promised by tort law.

This has led imaginative and innovative lawyers to explore the potential liability of financially viable third parties for the criminal conduct of others. Until recently, courts have resisted the temptation to impose liability on anyone other than the criminal. He is the person primarily responsible for the criminal violence and there has been an understandable reluctance to shift any of that responsibility to someone else. Nevertheless, the expansion of negligence law, the erosion of the nonfeasance immunity, a less rigorous approach to intervening acts, and a greater willingness to impose liability on governmental institutions has led to a legal environment that encourages and facilitates the liability of third parties who are in a position to prevent crime before it is committed and, thereby, protect the public.

The primary targets for this kind of third-party liability are law enforcement officials. There was already authority imposing liability for damage caused by offenders who escape from custody [Note 141: Dorset Yacht Co. v. Home Office, [1970] A.C. 1004 (H.L.).] or who are imprudently and prematurely released from custody. [Note 142: See, for example, Toews v. McKenzie (1980), 109 D.L.R. (3d) 473 (B.C.C.A.) (no liability on the facts).] In those cases, however, the offender was already in custody and the defendant was charged with responsibility for his supervision and control. The more contentious cases are those that seek to impose liability on the police for a negligent failure to solve a crime or warn of a serial offender before the plaintiff suffers loss. This issue has been canvassed in two contrasting decisions, that of the House of Lords in Hill v. Chief Con- stable of West Yorkshire [Note 143: (1988), [1989] A.C. 53 (H.L.) [Hill].] and that of the Ontario General Division in Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police. [Note 144: (1998), 39 O.R. (3d) 487 (Gen. Div.) [Jane Doe].] The Hill case dealt with a pre-trial motion seeking to dismiss a claim on the ground that the defendant owed no duty of care to the plaintiff. Jane Doe is a decision on the merits.

In the Hill case, an action was brought by the family of Ms. Hill, the final victim of a serial murderer whose crimes spanned a five-year period. It was alleged that, if the police had exercised reasonable care in the investigation of the crimes, the offender would have been apprehended before Hill was murdered. A number of factors supported the imposition of a duty of care. It was readily foreseeable that any delay in the apprehension of the killer would pose a great threat to other young women including the plaintiff. Furthermore, the duty of care suggested was consistent with the general functions of the police, namely, the efficient investigation of crime, the timely apprehension of criminals, and the protection of the public. It would also promote the compensatory and deterrent functions of negligence law. In spite of this, the Court held that the police owed no duty of care to the plaintiff to apprehend the killer in a timely and efficient manner. It held that there was insufficient proximity between the defendant and the large class of potential victims to support a duty of care and that public policy favoured police immunity from liability in negligence. There was, in the Court's view, no need for negligence law to provide a deterrent against poor policing. The best endeavours of the police could not be doubted. Furthermore, the imposition of a duty of care might lead to defensive policing, to a flood of claims, and to resources being diverted from the fight against crime to the defence of litigation. Lastly, many policing decisions are of a policy and discretionary nature dealing with the allocation of resources and the priority of investigations, which should not be second-guessed by the courts.

Jane Doe indicates that Canadian courts may take a less conservative approach. Jane Doe was sexually assaulted by a serial rapist who operated in the vicinity of two Toronto streets. He targeted single white females who lived in apartments to which he gained entrance through the balcony doors. The defendant police, who knew that the sexual assaults would continue until the rapist was apprehended, did not warn women in the area. The Court held that the police owed a duty of care to the plaintiff. She was one of a specific group of women who, to the knowledge of the police, were at specific risk of harm and they had failed to warn her or in some other way protect her. Cause-in-fact was established on the plaintiff's evidence that, had she been warned, she would have taken protective measures that would probably have prevented the sexual assault. The trial judge noted that the decision was consistent with the statutory obligation of the police to protect citizens and that providing warnings to the women at risk would not have compromised the police investigation. [Note 145: Liability was also imposed on the police for breaching Ms. Doe's rights under the Charter of Rights and Freedoms. See chapter 8 below.] She rejected any suggestion that policing was a complicated business in which the courts should refrain from interfering.

The Jane Doe case may be distinguished from Hill. First, the plaintiff in Jane Doe was a member of a narrower and more distinct class of persons than those threatened in Hill. Second, the issue in Jane Doe was one of timely warning. In Hill the efficacy and competence of a long police investigation were at issue. Nevertheless, Jane Doe signals a different judicial attitude to the accountability of the police. It is an attitude that is probably more attuned to the views of Canadian citizens about the accountability of public authorities and to the public's interest in effective policing. It is also preferable to deal with these cases by setting appropriate standards of care sensitive to the competing interests of the parties rather than to assert the absence of a duty of care and the creation of an immunity that inevitably will be subject to exceptions in compelling cases. [Note 146: There has, for example, been some erosion of the Hill immunity in England. A duty of care has been imposed, for example, to make sure that a written statement by a police informant identifying a killer is kept securely so that it does not find its way back to the criminal, thereby endangering the informant: see Swinney v. Chief Constable of Northumbria Police Force (1996), [1997] Q.B. 464 (C.A.). The immunity may also be in contravention of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, Eur. T.S. 5, 213 U.N.T.S. 221, s. 6, because it unduly denies access to the courts. See G. Monti, "Osman v. U.K. - Transforming English Negligence Law into French Administrative Law?" (1999) 48 Int'l & Comp. L.Q. 757.]

There are, of course, other third parties who may be in a position to intervene and prevent the commission of a crime. Physicians, psychiatrists, and other professionals may become aware of the intent of a patient or client to commit a criminal act. A much-discussed decision in this context is the Californian case of Tarasoff v. Regents of University of California. [Note 147: 551 P.2d 334 (Cal. 1976).] In that case, a psychotherapist was sued when his patient murdered Ms. Tarasoff. The patient told the psychotherapist of his murderous intentions, but the psychotherapist did not warn the victim or her family. Foreseeability, the desirability of protecting the victim, and the seriousness of the threat to an identified person supported the existence of a duty of care. The defendant argued that the recognition of a duty to the potential victim would compromise the confidentiality of the professional relationship, have a chilling effect on the openness of the therapeutic process, and lead to practical difficulties such as evaluating the seriousness of the threats and the degree of danger to others. The Court gave priority to the safety and protection of innocent third persons and imposed a duty of care. [Note 148: 1 Some support for this view can be derived from the Supreme Court decision in Smith v. Jones, [1999] 1 S.C.R. 455 [Jones] on the related issue of the solicitor/ client privilege. The Court recognized a "public safety exception" to the solicitor/ client privilege and, by inference, to the physician/patient duty of confidentality. The solicitor may inform the appropriate authorities where there is a clear and imminent threat of serious bodily injury or death posed to an identifiable person or class of persons by a client. The Court did not, however, address the issue of a duty to disclose such information to the relevant authorities or to the potential victim or victims.]

There is also considerable room for the development of premises-security litigation. A duty of care may be imposed on the owner or occupier of a building to take reasonable security measures for the protection of the tenants and visitors when he is aware that criminal activity has taken place or is likely to take place either on the premises or in its general vicinity. Careful attention must, however, be paid to each particular case to determine if the appropriate vehicle of liability is negligence law or occupiers' liability law. [Note 149: Q.v. Minto Management Ltd. (1985), 49 O.R. (2d) 531, aff'd (1986) 57 O.R. (2d) 781 (C.A.).]

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE

J. EDUCATIONAL MALPRACTICE

The central mission of the public education system is to instill basic academic skills in the students it serves. There are few more important public services. School boards and teachers are, however, largely immune from liability in negligence in respect of their educational responsibilities. They are, of course, under a duty of care in respect of their students' personal safety and property but not in respect of their educational needs and expectations.

The issue of educational malpractice arose initially in the United States. [Note 150: See, for example, Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814 (Ct. App. 1976).] The cases that have been brought before American courts may be divided broadly into two groups. The first group involves plaintiffs without identifiable learning disabilities who, nevertheless, have completed their schooling without acquiring basic reading and math skills. The second group deals with plaintiffs who have diagnosable learning disabilities, such as dyslexia, which have not been detected or, if detected, have not been addressed in an appropriate manner. Almost without exception, the claims in both groups of cases have failed at the threshold stage of an absence of a duty of care. A number of reasons have been given by American judges for refusing to entertain actions in either category. First, it is difficult to set the standard of care in order to determine if there is fault. Teaching methods and theories of learning are so diverse that it is not possible to formulate a normative standard. Second, a determination of cause-in-fact presents formidable problems. The failure of a student in a school system may be due to a wide range of social, economic, family, genetic, physical, and environmental factors operating unequally throughout the course of the plaintiff's education. It is difficult to gauge the contribution of poor teaching to the plaintiff's lack of academic skills. Third, the courts ought not to interfere with the educational system or second-guess the full range of budgetary, discretionary, and pedagogical decisions that must be made in the performance of statutory powers. Fourth, administrative procedures to remedy specific concerns and grievances may be available to students and their parents during the plaintiff's schooling. Finally, educational malpractice may unleash a flood of burdensome litigation against school boards that are already under financial pressure. These reasons are certainly sufficient to proceed with caution in respect of educational malpractice claims but they must be weighed against arguments in favour of imposing liability.

School boards and teachers assume a responsibility for the quality of the educational system and for the schooling of children, and both the students and their parents foreseeably and reasonably rely on that system. The failure to educate can have profound economic and emotional consequences, and it is arguable that a plaintiff should at least be given a chance to satisfy the difficult burden of proof in respect of the standard of care and causation and hold the system accountable.

There have been few Canadian cases that have directly addressed the issue of educational malpractice but those that have accept the American view. In Hicks v. Etobicoke (City) Board of Education, [Note 151: [1988] O.J. No. 1900 (Dist. Ct.) (QL). See also R.L. v. British Columbia (1998), 25 C.P.C. (4th) 186 (B.C.S.C.).] the Court held that there was no tort of educational malpractice. The same conclusion was reached in Gould v. Regina (East) School Division No. 77. [Note 152: (1996), [1997] 3 W.W.R. 117 (Sask. Q.B.).] In the Gould case, the plaintiff was a seven-year-old girl who had suffered stress and anxiety as a result of the defendant's teaching. Matheson J. relied on the American authorities and struck out the statement of claim alleging negligence as disclosing no reasonable cause of action. He emphasized the difficulty in setting a standard of care in this context and the fact that the distress and anxiety alleged by the plaintiff was not compensable in negligence. This case is, however, distinguishable from the typical educational malpractice case. It focused on the alleged emotional abuse of the plaintiff and the insensitive behaviour of the teacher during one school year. This is different from cases of academic impairment on graduation and prolonged failure to recognize and address the special educational needs of the plaintiff.

In due course, the Supreme Court will address the issue of educational malpractice. The Court may draw a distinction between the two groups of cases that have been addressed by the American courts and look more favourably on those that deal with the failure to diagnose and deal with recognizable learning disabilities. [Note 153: See X (Minors) v. Bedfordshire County Council, [1995] 2 A.C. 633 (H.L.).] In those cases, there is likely to be less difficulty with the standard of care and causation issues. The evaluation, testing, and placement of children with special needs is often conducted by school psychologists and other experts whose standard of care is more readily ascertainable. Causation may also be established from medical research detailing the impact of the disability on a child's ability to learn. Furthermore, these cases focus on the treatment of a particular child. They do not seek to challenge the integrity and standards of the system. They, therefore, present fewer indeterminacy concerns and they target the operation of the system and not its policy decisions. These are the kinds of cases that are most likely to breach the wall of immunity from negligence liability now enjoyed by our educators. [Note 154: A recent decision of the English Court of Appeal is not, however, encouraging. In Phelps v. Hillington London Borough Council, [1999] 1 W.L.R. 500 (C.A.), the Court, for a variety of reasons, refused to impose liability on an educational psychologist who failed to diagnose the plaintiff student's dyslexia. See also Jarvis v. Hampshire County Council, [1999] T.N.L.R. No. 839 (C.A.) (QL).]

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE

K. LEGAL MALPRACTICE

On the whole, legal malpractice cases are handled in much the same way as other professional liability cases. There are, however, three situations where special considerations apply. The first relates to the duty of care in the conduct of litigation. The second relates to the liability of lawyers to non-client third parties. The third addresses the concept of informed consent to legal representation.

1) The Duty of Care of a Lawyer in the Conduct of Litigation

A lawyer owes a duty of care to a client in respect of almost all legal tasks that she undertakes. The only remaining area of doubt relates to the actual conduct of criminal and civil litigation. In Rondel v. Worsley, [Note 155: [1969] 1 A.C. 191 (H.L.).] the House of Lords held that a lawyer is immune from negligence liability in respect of the conduct of litigation. This is known in England as the barrister's immunity. The landmark Canadian decision on the point is Demarco v. Ungaro. [Note 156: (1979), 21 O.R. (2d) 673 (H.C.J.) [Demarco].] In that case, Krever J. refused to follow Rondel and held that the barrister's immunity was not part of the law of Ontario. Subsequent Canadian decisions have followed Demarco, but until the issue is settled by the Supreme Court, some doubt remains. It is appropriate, therefore, to rehearse the arguments for and against a barrister's immunity or, in Canadian terms, a litigator's immunity.

There is no doubt that under the Anns test a lawyer owes a prima facie duty of care to the client. The defendant can reasonably foresee that negligence in the conduct of a client's case may adversely affect its outcome. The debate centres on the competing policy factors and whether or not there are good reasons to negate the prima facie duty of care.