Simplifying Canadian Negligence Actions Against Public Authorities – Or Maybe Not

Many lawyers and judges believe that despite the unique statutory origins of public authorities, they should be held liable in negligence exactly like any private party. This article suggests that public authority negligence law could be remarkably simplified without any adverse consequences by adopting precisely such a test for recognizing a duty of care- recognizing a prima facie duty of care whenever a duty would lie in private party negligence in the same or meaningfully analogous situations. The more challenging case is the one in which the plaintiff seeks to establish a unique duty of care owed by a public authority on grounds that would not support a cause of action against a private defendant. The article suggests that it is time to acknowledge that such cases do exist, and time to justify them, if they can be justified, as unique efforts to expand judicial control of governments and public authorities. Proximity as we know it provides no such justification.