Federal Court - Christian Aboriginal Infrastructure Developments ...

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those analogous thereto, that are to be analysed with the newly
framed test (Childs, paragraph 15).
[17] This review of the current state of the law demonstrates
that the full Anns/Cooper analysis need not have been undertaken in
this case. The essence of the negligence claim in this case is one of
"liability for negligent misstatement", an existing category of case
listed in Cooper v. Hobart, where proximity can be posited
(paragraph 36). The Canadian law in this area was well-articulated
prior to Cooper v. Hobart in two Supreme Court of Canada
decisions, The Queen v. Cognos Inc., [1993] 1 S.C.R. 87 and
Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165.
2010 FC 495 (CanLII)
[18] Since the now-famous decision in Hedley Byrne & Co.,
Ltd. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), courts
have recognized that an action in tort may lie, in appropriate
circumstances, for damage caused by negligent misstatement or
negligent misrepresentations. In Queen v. Cognos Inc., the
Supreme Court of Canada summarized the jurisprudence in this
area and outlined five general requirements for imposing liability
for negligent representations:
33 ... (1) there must a duty of care based on a
"special relationship" between the representor and
the representee; (2) the representation in question
must be untrue, inaccurate, or misleading; (3) the
representor must have acted negligently in making
said representation; (4) the representee must have
relied, in a reasonable manner, on said
misrepresentation; and (5) the reliance must have
been detrimental to the representee in the sense that
damages resulted.
[19] Cognos affirmed that a duty of care exists with respect
to representations when a "special relationship" between the
representor and representee is present. As explained in Hercules,
utilizing the Anns v. Merton test, such a "special relationship"
exists prima facie when reliance by the representee is both
reasonably foreseeable and reasonable in the circumstances (at
paragraph 43):
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