Sasha Baglay, ‘Who Is My Neighbour? The Duty Of Care In The Immigration Context: A Perspective From Canadian Case Law’

Abstract:
This article reviews and analyzes recent Canadian jurisprudence on immigration-related torts, situating it in the context of the contrasting logic of immigration and tort law. Immigration law’s focus on the absolute power of the state to control admission directs courts away from the recognition of the duty of care. In contrast, tort law theory does not preclude the possibility of private law duties to non-citizens, especially in light of the absence of other effective remedies to address the power imbalance between the host state and the non-citizen. The article examines how these two narratives were negotiated in cases of alleged negligence in immigration processing. It problematizes certain aspects of the current construction of the duty of care towards non-citizens and offers some suggestions for a more nuanced understanding of the factors considered under the Anns/Cooper test.

Sasha Baglay, Who Is My Neighbour? The Duty Of Care In The Immigration Context: A Perspective From Canadian Case Law, Windsor Yearbook of Access to Justice vol 33(2) 117 (2016).

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