The test for determining the existence of a private duty of care owed by a public authority is known as the "Anns/Cooper" test: Cooper v. Hobart, 2001 SCC 79. The test requires a court to address the analysis by considering the following series of questions: 1) Does a sufficiently analogous precedent exist that definitively found the existence or non-existence of a duty of care in these circumstances; If not; 2) Was the harm suffered by the plaintiff reasonably foreseeable; If yes; 3) Was there a relationship of sufficient proximity between the plaintiff and the defendant such that it would be just to impose a duty of care in these circumstances; If yes, a prima facie duty arises; 4) Are there any residual policy reasons for negating the prima facie duty of care established in question/step 3, aside from any policy considerations that arise naturally out of a consideration of proximity. If not, then a novel duty of care is found to exist.
The onus is on the plaintiff to show a prima facie duty of care (through answering questions 1-3, above); but the onus is on the defendant to establish any policy reasons for negating the prima facie duty of care: Childs v. Desormeaux, 2006 SCC 18 at para. 13. Only questions 3 and 4 are in issue on this appeal.
"The most advanced legal research software ever built."
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.