Bruce Feldthusen, ‘Please Anns – No More Proximity Soup’

Under the Anns/Cooper template ‘proximity’ is nominally the key concept the Canadian courts employ when deciding whether to recognize novel duties of care in negligence. This article reviews Supreme Court decisions over the past 40 years. It exposes ‘proximity’ as a shape-shifter and the two-step Anns/Cooper template as a sham. The author argues that the Anns/Cooper template ought to be abandoned, or that more diligence be applied to the template, particularly to the concept of proximity. A clearer distinction between true proximity – matters of relationship between the parties, and distributive policy-making is required. If both are to be employed, the conditions under which judicial policy-making is appropriate must be specified, and the circumstances when such policy trumps true proximity, if any, articulated. The overwhelming complexity of proximity in actions against the government and statutory authorities can be eliminated simply by following the UK’s leading and refusing to recognize unique public duties of care.

Feldthusen, Bruce, Please Anns – No More Proximity Soup (September 4, 2018). Supreme Court of Canada Law Review, forthcoming.

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