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Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2 ("Kamloops") is a leading Supreme Court
of Canada (SCC) decision setting forth the criteria permits a plaintiff to make a claim in
tort for pure economic loss. In this regard, the Kamloops case is significant because the
SCC adopted the “proximity” test set out in the House of Lords decision of Anns v.
Merton London Borough Council, [1978] A.C. 728. Kamloops is also significant as it
articulates the “discoverability principle” in which the commencement of a limitation
period is delayed until the plaintiff is aware of the material facts on which a cause of
action are discovered or ought to have been discovered by the plaintiff in the exercise of
reasonable diligence. This is later adopted and refined in Central Trust Company v.
Rafuse, [1986] 2 S.C.R. 147. Finally, Kamloops develops the law governing
circumstances where a plaintiff can sue the government in tort.
Facts
A house in Kamloops, British Columbia had insufficient foundations which were
discovered upon inspection by the city. Stop work orders were issued but not enforced.
The house was sold to the Neilsens. On discovering the construction deficiencies, the
Neilsens sued the city for negligent performance of inspection.
Issues
Under statute, the city had a discretion whether to inspect construction. The city argued
that it could not be liable for exercising that discretion. The statute also fixed a limitation
period in which a plaintiff could sue the city, and the city argued the limitation period had
expired. Finally, the city argued that the damages sought were considered to be “pure
economic loss”, which at law were generally not recoverable.
Results
The exercise of the statutory discretion granted to the city as to whether or not it would
inspect was a policy decision. A plaintiff cannot sue government for a policy decision.
However, once the city elected to inspect, the enforcement of that decision was an
operational decision which could give rise to a duty of care. On a breach of that duty of
care, a plaintiff could sue. The court concluded that the city breached its duty of care by
negligently enforcing inspection.
The court concluded that the limitation period had not expired when the action was
started. While the lawsuit had commenced after the limitation period if time had begun to
run at the time the city failed to properly inspect, the court held that the commencement
of a limitation period was delayed until the material facts on which a claim is based have
been discovered or ought to have been discovered by the plaintiff by the exercise of
reasonable diligence. This principle is later refined by the SCC in Central Trust Company
v. Rafuse.
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Finally, the court held that the plaintiffs could recover its loss despite its categorization as
“pure economic loss”. The SCC adopted the “Anns Test” (from Anns v. Merton London
Borough Council), which allows a claim in tort for economic loss when:
a. there is a sufficiently close relationship between the parties so that in the
reasonable contemplation of the defendant, carelessness on its part could cause
damages to the plaintiff; and
b. there are no considerations that should serve to limit or negative the scope of
the duty, the class of persons to which it is owed, or the damages to which a
breach of the duty would give rise.
Since its decision in Kamloops, the SCC has enumerated five categories of compensable
economic loss, originating in [[Canadian National Railway Co. v. Norsk Pacific
Steamship Co.]], [1992] 1 S.C.R. 1021. While the categories are not closed, those
identified to date are:
a. The Independent Liability of Statutory Public Authorities;
b. Negligent Misrepresentation;
c. Negligent Performance of a Service;
d. Negligent Supply of Shoddy Goods or Structures;
e. Relational Economic Loss.
While Anns has since been overturned in the United Kingdom, on a number of occasions
the SCC has reaffirmed the Anns Test in Canada. An example would be Dobson
(Litigation Guardian of) v. Dobson (1999) below.
Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753 was a landmark
decision by the Supreme Court of Canada on a pregnant woman's legal duties in tort law.
It was the first time the Supreme Court of Canada had to consider this issue.[1] The
majority of the Court found that tort claims cannot be brought against women for
negligence toward the fetus during pregnancy.

Background
The case involved one Cynthia Dobson, who in 1993 was driving and got into a car
accident in bad weather. Her fetus was supposedly damaged in the accident, and was
delivered by Caesarean section on the day of the crash, before the expected due date. The
child had cerebral palsy. On behalf of the child, his grandfather brought a tort claim
against the mother for negligence in driving.
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Decision
The majority decision was written by Peter Cory, who began by emphasizing the
uniqueness and importance of pregnancy, saying it "speaks of the mystery of birth and
life" and that "The relationship between a pregnant woman and her foetus is unique and
innately recognized as one of great and special importance to society." He noted it was
usually the case that women care for their fetus, before he turned to address negligence.[2]
Cory noted that the only issue before the Supreme Court was whether such a tort claim
could be made; is a pregnant woman liable for negligence? He then turned to cases in
which children actually did make successful tort claims for fetal injuries. These included
Montreal Tramways Co. v. Léveillé (1933), in which a child successfully sued for club
feet, and the Court had said that otherwise there would be no way to achieve justice for
the child. However, in 1999 Cory noted that the action in the earlier case was not against
the mother, which was a more "sensitive issue."[3]
The Court then cited City of Kamloops v. Nielsen (1984) to say the "duty of care" that a
mother has for a child is not forced on the mother by courts through public policy. Only a
legislature can consider such an issue. Following Kamloops, the Court said a duty of care
is recognized if the involved people are closely related, and if the issue does not raise
questions about public policy. While fetuses and their mothers have often legally been
seen as one person, for the purposes of this case the Court addressed the issue as if they
were two people. This satisfied the requirement that the involved people, namely Cynthia
Dobson and her fetus, were closely related. As the Court noted, "almost any careless act
or omission by a pregnant woman could be expected to have a detrimental impact on
foetal development."[4] However, the issue raised questions of public policy; it implicated
privacy rights of a pregnant woman and her bodily control.[5] In this sense, it involved
consideration that pregnancy may be the "human condition" most "important to society"
as it preserves the human race. Moreover, pregnancy symbolizes "fertility and hope."
Cory cautioned, however, that despite all this, a woman remains a person with rights.[6]
The issue of a pregnant woman's responsibilities ran deep, deeper than that of another
person who could be sued for causing damage to someone else's fetus. The pregnant
woman's relevant activities would include what "the pregnant woman eats or drinks, and
every physical action she takes" and this involves "every waking and sleeping moment, in
essence, her entire existence."[7] Whereas a mother has emotional responsibilities for a
fetus, adding a tort dimension to this would seriously alter it.[8]
Turning to other countries, Cory found that in the United Kingdom the Parliament had
enacted a law granting tort immunity to pregnant women for fetal damages. The only
responsibilities were minor ones concerning negligence in driving. Any responsibilities,
some in the UK noted, were private and not legal.[9] In the United States, the judges
seemed to be split on whether a woman can be held liable for her fetus' injuries.
However, the Supreme Court of Illinois in 1988 had noted there were the woman's
privacy rights to consider.[10]
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Returning to this case, the Court found a woman may negligently cause fetal injuries in
many ways, car accidents representing 28% of these cases.[11] Moreover, if a place of
work is dangerous, tort responsibilities may affect a woman's right to work, or she might
be forced to work for the money.[12] It could also have psychological consequences for
the woman, and would lead to poor mother-child relations as the child matures.[13]
Another reason why the issue raised concerns of public policy was that the judicial
system would have to define the proper behaviour of a pregnant woman, a so-called
"reasonable pregnant woman" test.[14] However, Cory responded that courts should not do
this. It raised questions as to whether objective expectations can be made, as some people
will have subjective beliefs regarding the pregnant woman.[15] This went back to concerns
about privacy rights.[16] Moreover, leaving it to the individual to determine what is
reasonable makes sense since the individual is more aware of her economic status and
ability to obtain health care, and given the educational and ethnic differences of
individual women.[17]
Regarding driving, the New Brunswick Court of Appeal had argued that one could
separate responsible driving from personal autonomy. This is what had been done with
the 1976 UK law that generally exempted the woman from legal responsibilities, except
for driving. However, Cory replied that "With respect, the UK legislative solution to the
issue at bar cannot be interpreted as support for the test suggested by the Court of Appeal.
To do so presumes that it is appropriate for courts to resolve an extremely sensitive and
complex issue of public policy and insurance law." Moreover, just because this was a
British law did not mean it was a principle of common law.[18] Additionally, the British
law was designed this way so that the tort would be covered by insurance, thus easing a
driving pregnant woman's stress in knowing her insurance would help.[19]
Concurrence
Dissent
Commentary
Although this case did not address abortion in Canada, Professor Rand Dyck in a
discussion on security of person notes the decision bears some parallels with Tremblay v.
Daigle (1989). In that case, the Court found a man cannot acquire an injunction to stop
his partner from having an abortion. Here, a woman was not legally responsible for fetal
injuries.[20]
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While the Canadian Charter of Rights and Freedoms applies only to government actions,
one scholar cites Dobson as an example of how "the courts have undoubtedly promoted
flexible Charter values in private law cases since 1982."[21] Conversely, the Human
Rights Program under the Department of Canadian Heritage once suggested that Dobson
partly illustrates how the International Covenant on Economic, Social and Cultural Rights
influences Canadian law. Specifically, Dobson reflects article 10 of the Covenant,
"Protection of the Family, Mother and Child." Other cases said to reflect that article
include Augustus v. Gosset (1996), Winnipeg Child and Family Services (Northwest
Area) v. G. (D.F.) (1997), and New Brunswick (Minister of Health and Community
Services) v. G.(J.) (1999).[22]
References
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20.
^ Para. 76.
^ Para. 1.
^ Para. 14.
^ Para. 20.
^ Para. 21.
^ Para. 24.
^ Para. 27.
^ Para. 29.
^ Para. 35.
^ Para. 37.
^ Para. 42.
^ Para. 43.
^ Para. 46.
^ Para. 49.
^ Para. 50.
^ Para. 51.
^ Para. 54.
^ Para. 64.
^ Para. 68.
^ Rand Dyck, Canadian Politics: Critical Approaches, third ed. Scarborough, Ontario:
Nelson Thomson Learning, 2000, page 437.
21. ^ Mitchell McInnes, "The Measure of Restitution," The University of Toronto Law
Journal, Vol. 52, No. 2. (Spring, 2002), page 201.
22. ^ Canadian Heritage. Human Rights Program. "Jurisprudence," URL accessed 28 August
2006.
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