Civil Procedure – Class Proceedings –
Regulatory Negligence – Proximity
The plaintiff was a representative of a class of persons who
claimed to have suffered injury as a result of the implantation of
temporomandibular joints in their jaws. The claim was brought
against the Attorney General of Canada for the alleged negligence
of Health Canada in the exercise of its regulatory duties,
statutory powers and responsibilities.
In 2007, the class action was certified by Mr. Justice Cullity,
who found that there was sufficient proximity between the parties
for a finding of regulatory negligence. In doing so, Cullity J.
relied on Sauer v Canada (Attorney General),  OJ No
2443 (CA). In Sauer, the court found that government
regulators of cattle feed owed a prima facie duty of care
to commercial cattle farmers.
However, in 2008 the Court of Appeal dismissed appeals in
Drady v Canada (Minister of Health) (2008), 300 DLR (4th)
443 (Ont CA), and Attis v Canada (Minister of Health)
(2008), 93 OR (3d) 35 (CA). In dismissing the appeals, the court
found that there was no proximity between the parties. It
distinguished Sauer as having found proximity on the basis
of many public representations by the defendant. It found that
where there are no such public representations, there is no
proximity between the parties. Leave to appeal both decisions was
refused by the Supreme Court of Canada.
In light of the decisions in Drady and Attis,
the defendant in Taylor moved for a reconsideration of
Cullity J.'s certification of the class proceeding. On
reconsideration, the plaintiff's statement of claim was struck
with leave to amend. A motion to amend the statement of claim was
To further complicate matters, after the dismissal of the
appeals in Drady and Attis, but prior to the
striking of the statement of claim in Taylor, the British
Columbia Court of Appeal upheld a pleading against the federal
crown for negligent misrepresentation and negligent development of
tobacco strains for mild and light cigarettes in Knight v
Imperial Tobacco Canada Ltd (2009), 313 DLR (4th) 695 (BCCA),
and in doing so, relied on Cullity J.'s finding that proximity
had been established in Taylor.
In Taylor, rather than appeal the decision allowing the
amendments to the plaintiff's statement of claim to the
Divisional Court, the parties chose to bring a joint motion to the
Court of Appeal to request that the issue be settled as a
"special case" pursuant to Rules 22.01 and 22.03 of the
Rules of Civil Procedure.
Mr. Justice Armstrong of the Court of Appeal cautioned that it
will be a "rare case" where the Court of Appeal will
allow parties to leapfrog the Divisional Court. However, he agreed
with the parties that the case before him was in fact one of the
rare cases in which it was appropriate to do so. He found that the
increased cost and delay of moving the case through the Divisional
Court, and the inevitability that it would end up before the Court
of Appeal in any event, favoured the exercise of the court's
discretion to allow the motion. Justice Armstrong was also
persuaded by the importance of the legal issue involved, and the
fact that the motion was on consent of both parties. The motion was
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