Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 170
(a) Proximity
[663] In the present case, as in Brewer Bros. et al v. Canada (Attorney General) (1991), 129 N.R.
3 (F.C.A.), there is a close and specific relationship between the Plaintiffs and the Defendant. This
close, even intimate relationship, was fostered over many years.
[664] The Defendant argued that there was no special relationship with the Plaintiffs that can
2010 FC 495 (CanLII)
support recognition of a duty of care. She relies on the decision in Hercules Managements v. Ernst
& Young, [1997] 2 S.C.R. 165, at para. 24, where the Supreme Court said that there was no
proximity of “such a nature that the defendant may be said to be under an obligation to be mindful
of the plaintiff's legitimate interests in conducting his or her affairs”.
[665] The Defendant argued that since the duty of care, under the relevant statutes and regulations,
is owed to the public at large, the Plaintiffs cannot establish proximity, which is the first essential
element for the recognition of a duty of care.
[666] As well, the Defendant argued that the Plaintiffs enjoyed no closer relationship with her than
any other applicant for a CTP or THA and that in any event, the Plaintiffs’ economic interests “must
be subordinated to the greater purpose of the legislation, which benefits the public as a whole”.
[667] Further, the Defendant cited the decision in A.O Farms Inc. v. Canada (2000), 28 Admin.
L.R. (3d) 315 (F.C.T.D.) to argue that the basis for finding a duty of care must be found in the
governing statutes.