Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 172
[671] Cooper and Edwards are dealing with issues of regulatory negligence where the Supreme
Court of Canada found that the defendants were engaged in third-party relationships with plaintiffs
and there was no proximate relationship. The difference between instances of regulatory negligence
and direct negligence was addressed by the Ontario Court of Appeal in Attis v. Canada (Minister of
Health) (2008), 300 D.L.R. (4 th ) 415 (Ont. C.A.), leave to appeal to the Supreme Court of Canada
refused (2009), 303 D.L.R. (4 th ) vi.
2010 FC 495 (CanLII)
[672] In Heaslip Estate v. Mansfield Ski Club Inc. (2009), 310 D.L.R. (4 th ) 506 (Ont. C.A.), the
Ontario Court of Appeal commented on the regulatory negligence cases at paras. 19 and 20 as
follows:
19 This case is distinguishable from cases like Cooper and Attis. In
those cases, the plaintiffs suffered harm at the hands of a party
involved in an activity subject to regulatory authority, and then
alleged negligence on the part of the governmental authority charged
with the duty of regulating the activity that gave rise to the plaintiff's
loss. Cooper and Attis hold that such plaintiffs have no direct
relationship with the governmental authority and can assert no higher
claim to a duty of care than any other member of the public.
20 The claim asserted here does not rest solely upon a statute
conferring regulatory powers, as in Cooper and Attis, but is focused
instead on the specific interaction that took place between Patrick
Heaslip and Ontario when the request for an air ambulance was
made. In this case, the relationship between Patrick Heaslip and the
governmental authority is direct, rather than being mediated by a
party subject to the regulatory control of the governmental authority.
[673] The Ontario Court of Appeal noted that the emphasis, in considering proximity for the
purposes of recognizing a duty of care, is upon the direct relationship between the parties.