Electronic Thesis and Dissertation Repository

Thesis Format

Monograph

Degree

Doctor of Philosophy

Program

Law

Supervisor

Pitel, Stephen G.A.

Abstract

In its decisions in Kamloops v Neilsen and Rothfield v Manolakos, the Supreme Court of Canada adopted a policy-driven justification for imposing liability on building authorities whenever the negligent exercise of their building regulation mandate led to any member of the public suffering any form of foreseeable loss. From its beginnings, this legal doctrine was incoherent and unjustified. It has also become an aberration within Canadian law as, beginning with the decision in Cooper v Hobart, the Supreme Court of Canada resiled from its earlier policy-based approach to imposing liability. What is required is a repudiation of the current legal doctrine, and its replacement by a new understanding of building authority liability. This new understanding is based on corrective justice, at a theoretical level, and a rights-based understanding of negligence law, at the doctrinal level. The current basis of building authority liability, with liability arising from the ability to foresee possible future losses, should be replaced by an inquiry into whether a building authority acted in such a way that it assumed responsibility to a particular person and caused that person to shift their behavior in detrimental reliance on that assumption. This new basis for building authority liability is assisted by the recent development within Canadian law of a rights-based understanding of claims for negligent misrepresentation and negligent performance of a service, an understanding that specifically employs the concept of an assumption of responsibility. Adapting this approach to building authority liability will allow it to be coherent both internally and with the wider field of Canadian negligence law.

Summary for Lay Audience

Beginning in the mid-1980s, Canada’s courts began to permit private citizens to sue municipal governments for financial losses they suffered to their real estate which could be blamed on municipal building inspectors carelessly doing their jobs at some point in the past. Municipalities could be held liable for any careless conduct on the part of their building inspectors, regardless of how far removed in time a plaintiff was, regardless of whether there had been any contact between the plaintiff and the municipality, and regardless of whether the plaintiff had actually been left financially worse off. However, the reasons and justifications offered by courts for permitting these claims were incomplete and unpersuasive. Also, starting around 2000, Canadian courts began to decide against permitting claims in similar situations from proceeding, offering new justifications and reasons for excusing government actors from legal liability in cases that were very similar to the claims they continued to allow against municipalities for the conduct of their building inspectors. This dissertation argues that Canadian law should no longer permit claims against municipal governments for careless building inspection, but should instead restrict the legal liability of municipalities to situations in which municipalities have specifically assumed responsibility to an individual who suffers harm in reliance on a municipality’s actions with respect to building inspection. This new understanding of how and when a municipality can be liable for how it exercises building regulation powers is not only more coherent and rational, but will also mean that this area of the law will align with how Canadian courts treat other similarly-situated government actors.

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