Reference re Broome: A Consistent, Albeit Unsatisfying Application of Tort Law
Last Wednesday, the Supreme Court of Canada (“SCC”) released its unanimous decision in Reference re Broome v. Prince Edward Island, 2010 SCC 11. I will not recite all of the facts in this case, as my colleague Daniel Del Gobbo articulated them fully in his analysis of the Court of Appeal’s decision. In short, the case boiled down to whether the PEI government owed any duty of care to individuals that allegedly suffered physical and sexual abuse as children when they lived in a private facility. The appellants came at the issue from several directions, arguing that the Province: a) owed them a general duty of care; b) had a non-delegable duty regarding the the care of facility residents; c) was vicariously liable for the acts or omissions of the facility’s board; and d) owed a fiduciary duty to the residents at the facility. From a strictly legal perspective, it is clear that the SCC correctly held that the statutory framework in place at the time of the abuse prevented any of these arguments from succeeding.
Writing for the SCC, Cromwell J. rejected the appellant’s arguments on the basis that there was insufficient proximity to establish a prima facie duty of care. Recall that under the Anns/Kamloops two-part test for finding a duty of care, the claimant must first show sufficient foreseeability and proximity to establish a prima facie duty of care. Second, the court must determine whether there are any residual public policy considerations that negate the finding of a duty. Given the scarcity of facts, Cromwell J. focused less on foreseeability and more on proximity. He laid out the factors of physical closeness, expectations, representations, reliance and the property or other interests involved to evaluate proximity. Although the outcome of the case is consistent with precedent, I cannot help but notice that these factors were not strenuously weighed in the actual decision.
Something Sounds a Bit Familiar…
I find myself reminiscing about the control and ascribed activity tests that are used to determine whether the Charter applies to an entity. In rejecting the appellants’ grounds that a duty of care was owed by the Province, Cromwell J. focused largely on themes that reverberate with the control test: financial control and day-to-day control. Given the appellant’s pronounced reliance on financial contributions, it was not surprising that Cromwell J. responded with equal force in holding that occasional grants of funding by the Province were insufficient to establish control. Since the Province did not attach any stipulations or monitor the use of the funding, it could not be said that the Province was exerting sufficient financial control to support a finding of proximity. Similarly, the absence of statutory authority that assigned to the Province a duty of care to the appellants, or any responsibilities to monitor private facilities, also supported the finding of insufficient proximity. It is also significant that the SCC found that there was insufficient proximity because the impugned facility was a private corporation, whose board was in control of the day-to-day operations. A similar analysis is used to determine whether the Charter applies to an entity.
The ascribed activity test was reflected in the SCC’s counter-intuitive rejection of the claim that the Province had a duty to the appellants pursuant to the parens patriae doctrine. I must stress that when I say counter-intuitive, I do not mean that the SCC’s reasoning is inconsistent with legal precedent. Rather, the SCC did not adopt the common layperson’s perspective, which is a presumption that the government has a responsibility to maintain the welfare of children living without a legal guardian. This presumption is somewhat akin to the paren patriae doctrine. The latter refers to the ambiguously defined authority of the Crown over the property and person of children. One can see how this doctrine could be tempered to make the maintenance of child welfare an “ascribed activity” of the government. Ultimately, the SCC found that this doctrine could not support a duty of care because it only gives the courts the jurisdiction to exercise discretion to protect a child. According to Cromwell J., “no authority has been presented for the proposition that the parens patriae doctrine imposes a positive duty to seek out and address cases of potential child abuse.” The parallel in Charter analysis would be that there was no ascribed activity at issue here.
I do not want to stray too far away from the tort law focus of the decision, but one can see that there are parallels between the SCC’s analysis of whether the Province owed a duty of care and the analysis of whether an entity is “government” for the purpose of subjecting it to the Charter. The common source of the parallels is likely the potential for the liability floodgates to swing open. Tax dollars are at stake. This discussion has led me to wonder whether the same treatment of the issues would occur with a non-government actor. In the end, the outcome of this case was correct, though I remain divided regarding the weight attributed to factors that were used to oust government accountability.