Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 243
(3) The representor must have acted negligently in making the misrepresentation;
(4) The representee must have relied, in a reasonable manner, on the negligent
misrepresentation; and
(5) The reliance must have been detrimental to the representee in the sense that damages
resulted.
2010 FC 495 (CanLII)
[930] I note that in Cognos, the Supreme Court of Canada said that a claim in negligent
misrepresentation may lie even if the parties are in a contractual relationship, which was the
situation in that case.
(i)
Duty of Care
[931] Since the claim of negligent misrepresentation is being advanced against the Crown as
Defendant, consideration must be given to the Cooper/Childs test. According to the decision of the
Federal Court of Appeal in Premakumaran v. Canada, [2007] 2 F.C.R. 191 (C.A.), the Court
advised that it is unnecessary to conduct a full duty of care analysis when the case is one of
negligent misrepresentation. At paras. 16 to 19, the Federal Court of Appeal said the following:
[16] Before doing the Anns/Cooper analysis, however, the
Supreme Court reaffirmed in Childs that a "preliminary point" arises:
the court must decide whether the jurisprudence has already
established a duty of care because, if the case is within either a
category in which precedent has held that a duty is owed or an
analogous category, it is "unnecessary to go through the Anns
analysis", which is reserved only for novel duty situations (para. 15).
The doctrine of precedent has not been abolished by Cooper. As the
court explains in Childs, "[t]he reference to categories simply
captures the basic notion of precedent" (paragraph 15). It is,
therefore, only new duty situations, not established categories and