Knowledge Centre

Non-Suit Applications when faced with a novel Duty of Care

Mark Hein
April 2018 Scott Venturo Rudakoff LLP, Alberta

From time to time in this industry we are faced with having to address claimants who feel they have been wronged, but whose situation does not fit within that of a recognized duty or standard of care.  In these situations, a Plaintiff may try to argue that a formerly unrecognized duty of care exists in order to establish negligence and to seek compensation.  As proponents of the insurance industry and as defence counsel, the onus falls on us to defend these novel situations in novel ways.

This was the case in late 2017 in Bruen v University of Calgary, 2018 ABQB 26 [Bruen] where a former mathematics professor argued that he had been harmed when the University of Calgary and the Department of Science at the University did not put his proposal forward for a research chair position that would have included significant funding grants.

The Plaintiff submitted that there exists an unrecognized duty on the university to allow an academic to pursue academic freedom by pursuing research opportunities.  The Plaintiff went further to argue that the standard of care required, “the University to treat him fairly and equitably; to address all of his concerns in a positive, timely, effective, supportive, unbiased and reasonable manner; to assist him in advancing his research proposal; and to apply principles of natural justice in its dealings with him through the faculty members with whom he dealt.” [Bruen at para 13]

Dr. Bruen felt that the core principles of the University, as set out in its Institutional Research Plan, required that he be treated in the above manner. In not doing so, he argued, the University had caused him to suffer compensable damages when it denied him an opportunity to apply for this funding and that the denial caused him to suffer emotional injury.

In the face of this novel duty of care and the lack of evidence pleaded by the Plaintiff, Defence Counsel brought a successful non-suit application to have the Plaintiff’s case dismissed in its entirety.

A non-suit application is permitted by Rule 8.20 of the Alberta Rules of Court, Alta Reg 124/2010, which states, “at the close of the plaintiff’s case, the defendant may request the Court to dismiss the action on the ground that no case has been made, without being asked to elect whether evidence will be called.”

Waap v Alberta, 2008 ABQB 544, when discussing the process for a judge to undergo when considering a non-suit application said at paragraph 135:

“The process for a judge hearing a non-suit application is to ask whether, based on the evidence presented by the plaintiff, taken at face value and without being weighted, there is enough evidence for a prima facie case against the defendants. If, on a central issue, the plaintiffs fail to present at least some evidence on which the trial judge or finder of facts could base a finding in the plaintiffs’ favour, no case has been made out and the defendants are entitled to a non-suit.”

The Alberta Court of Appeal has confirmed a similar principle, though from the perspective of the Plaintiff, when applying the test for a non-suit in Capital Estate Planning Corp v Lynch, 2011 ABCA 224 [Capital Estate], where the Court said:

“a non-suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of her claim.  In making this assessment, the trial judge does not weight the evidence or assess credibility. Furthermore, the trial judge must assume that the plaintiff’s evidence is true, and draw all reasonable inferences from it.” [Capital Estate at para 20]

Clearly, the bar that a Plaintiff must overcome when arguing against a non-suit application is not an onerous one, and the Court must put the Plaintiff’s evidence in the best light when deciding whether to grant the application.

The analysis becomes slightly more difficult for a Plaintiff when they rely on the Court to recognize a novel duty of care in the face of a non-suit application.

The Alberta Court of Appeal dealt with this very issue in the case of Holtslag v Alberta, 2006, ABCA 51 [Holtslag], where at paragraph 18 the Court said:

“when a duty of care in a novel situation is alleged, it is necessary to consider both steps of the Anns test on a non-suit motion.  This ensures that before a duty of care is imposed in a new situation, not only are foreseeability and relational proximity present, but there are no broader considerations that would make the imposition of a duty of care unwise.”

The Court went on in Holtslag to say that at the first stage of the Anns test the following two questions arise:

  1. Was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and
  2. Are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?

  [Holtslag at para 11, quoting Cooper v Hobart, 2001 SCC 79]

With respect to the first question, the Court will generally perform an analysis based on whether an analogous relationship or category exists as between the parties.  It will also look to the evidence, if any, which has been offered by the Plaintiff with regards to damages.  With respect to the second question, the Court in Holtslag stated that the underlying question is whether a duty of care should be imposed, taking into account all relevant factors disclosed by the circumstances. [Holtslag at para 12]

In terms of the second stage of the Anns test, the Court in Holtslag stated that it is not concerned with the relationship between the parties, but rather with the effect of recognizing a duty of care on other legal obligations, the legal system and society as a whole.  This involves considerations such as whether the law already provides a remedy, whether recognizing a new duty of care would create unlimited liability to an unlimited class, or other reasons of broad policy that suggest a duty of care should not be recognized.

This leaves us with a situation where though the bar is relatively low for the Plaintiff to overcome in terms of the evidence that they must offer, there are a number of hurdles in their way in order to prove they have a prima facie case.  First they must show that their case meets the requirements of the Anns test and gives rise to a new duty of care (and pass all of the difficulties included in that test), but they must also prove to the Court that they have adduced some evidence on each of the essential elements of a claim.

Taken on their own these tests may not be particularly onerous for a Plaintiff to overcome, but taken together they may provide defence counsel with a useful tool in dismissing claims involving a novel duty of care.

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