Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 173
[674] Similarly, the Defendant’s reliance on Design Services, to vitiate the proximity on policy
grounds, is misplaced. In that decision, the Supreme Court of Canada rejected a prima facie duty of
care due to its finding on a policy consideration. The policy consideration was the failure of the
appellant to protect itself by contract from the economic loss.
[675] The case of Design Services arose in a very different factual context from the present action.
2010 FC 495 (CanLII)
[676] Design Services was a tendering case where the subcontractors sought to impose liability on
the owners. It was a case of third party liability. There is no third party liability in the case at bar.
[677] Further, I accept the Plaintiffs’ evidence that they attempted to obtain assurances in writing
from the Department; see for example Exhibit D-11, Tab 106, among other evidence in the record.
[678] Given the significant differences between the factual context in this case and that in Design
Services, the absence of third party liability and the efforts of the Plaintiffs to secure assurances
from the Department, it is my opinion that Design Services does not apply here.
[679] In the present action, there is ample evidence to show that the relationship between the
Plaintiffs and the Defendant is direct and proximate. It is impossible to refer to each specific piece
of evidence that underlies and supports my findings of proximity. The evidence is in the record.
Some examples of the supporting evidence will be discussed in respect of each Plaintiff.