Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 195
inordinate delay, that inordinate delay is not a policy that can immunize the Defendant from owing a
duty of care to the Plaintiffs.
[763] In addition, the Defendant submits that there are residual policy considerations that should
negate the imposition of a duty of care, specifically the prospect of indeterminate liability with the
possibility that every person who was refused a permit or harvest licence would sue for damages.
2010 FC 495 (CanLII)
[764] I reject the Defendant’s submissions that such policy reasons exist, including the risk of
indeterminate liability. As observed by the Ontario Court of Appeal in Heaslip, that argument fails
to acknowledge the “very specific nature of the claim” advanced by the Plaintiffs. The Plaintiffs
base their action on the specific nature of a specific representation that was made by the Defendant.
The circumstances are unique to these parties. There is no risk of indeterminate liability.
[765] The point was also addressed by the Courts of Newfoundland and Labrador in Atlantic
Leasing where at para. 86, the Newfoundland and Labrador Supreme Court, Court of Appeal said
the following:
[86] The main policy consideration that affects the appropriateness
of whether or not a duty of care to prevent economic loss should be
recognized is the problem of indeterminate liability. That is much
more a problem in the context of relational economic loss. In the
circumstance of the current case, it is really not a concern. The
relationship which existed between the Crown and Atlantic was a
known and defined relationship and the scope of liability to which
the Crown could be exposed was defined by that known, and limited
relationship. The Crown knew that its inaction would affect a
determinate party, rather than an indeterminate group. For that
reason, I do not see any policy consideration which ought to limit the
prima facie duty of care that otherwise arises in these circumstances.