Public Authority Immunity from Negligence Liability : Uncertain, Unnecessary, and Unjustified

During the period between the Supreme Court of Canada's 1989 decision in Just v British Columbia and its 2001 decision in Cooper v Hobart the dominant issue in public authority negligence law was “common law immunity” for policy decisions. After 2001, proximity replaced immunity as the key concept in public authority negligence law. Immunity is most important when it is invoked to dismiss the action in the rare case in which the court had previously found a prima facie duty of care based on sufficient proximity between the parties. This is what happened at trial in Just v British Columbia and also in the 2011 Supreme Court of Canada decision in R v Imperial Tobacco Canada. Using these cases as the models, the author demonstrates that the policy-operational continuum used to determine the scope of immunity is uncertain to the point of meaningless. Next, the author suggests that a proper definition of proximity renders the immunity concept superfluous. Finally the author argues that when proximity is established on the same basis as it would be established in a private party action, it is wrong to immunize the public authority from negligence liability. The historical foundations of immunity are exposed as suspect. The accepted rationales for immunity do not apply to basic negligence issues that lie at the heart of the courts' institutional competence. In Imperial Tobacco the government's unnecessary negligence exposed smokers to an increased risk of illness and death. There was no justification for immunity