Posted: October 12th, 2016

explain to the members of the council when and how private law obligations (specifically a duty of care related to a determination of negligence) can be applied to public officials and offices, what ‘tests’ could be applied to make such a determination,

2. You have just moved to a small town (Baddecision, Ontario) to take up an exciting job as senior advisor to the municipal city council. On your very first day, the municipality has learned that a resident of the town is threatening to take legal action against the city for alleged negligence. The municipality needs to decide whether or not to defend themselves in court, or potentially seek to settle out of court. Before speaking to their lawyers, they have asked you to help them understand the issue at hand, and how a court might consider the claims being brought forward. The facts are as follows: In May of 2014, a young entrepreneur came forward with plans of building a new restaurant and tourist attraction: Eawok Village Café. The café was to be built as a sort of high-end tree house, using a mix of existing trees and columns to sit it high above the ground. The municipality heard the proposals, and accepted the plan provided all building codes were met. The café owner hired a specialized firm to design the plans for the restaurant. In October 2014, building inspectors for the city reviewed the plans and accepted them, and construction began. In November 2014, and without the municipality’s knowledge, the design firm quit the project – having raised concerns about the structural integrity of the building, and the materials being used by the construction company for the building supports. In December 2014 the local building inspector visited the premises and issued a stop work order, also concerned that the construction company was neither using the appropriate materials nor following the approved designs closely enough. Construction predominantly stopped for the winter (although some smaller aspects of the project proceeded). In April 2015, construction began again. Again, in late April 2015, the city inspector re-iterated the existing stop-work order was in effect. Construction stopped. In May 2015 the existing city inspector retired. Construction on the restaurant began again. A new city inspector was not hired until July 2015, by which point construction of the Eawok Village Café had been completed. The municipal city council formally considered the matter in a council meeting in August 2015, where they decided that, although the stop work order had never been lifted, given that construction had been completed and that notes and findings from the previous city inspector had been lost, they would proceed with providing the appropriate permits for the café to open. In September 2015 the Eawok Village Café had its grand opening. The café owners significantly oversold the event, and as a result overcrowded the café. The supports for the café failed, the building collapsed. While no one was killed, several people were badly injured. A legal action is being planned against the café owners, the construction company and the municipality for their various roles in the tragedy. Several members of the municipal city council believe that they should challenge the suite in court because they believe that Canadian Tort law will not find the municipality (as public officials) to have a private law duty of care. They cite their democratic power to make policy decisions as the reason for this ‘protection.’ Other members of the council are concerned, they have read about the need to exercise care in the ‘operationalization’ of their policy decisions, as well as some sort of ‘test’ the courts might apply. They want to understand what the ‘test’ entails and how it might be applied to this case. You have been asked to explain to the members of the council when and how private law obligations (specifically a duty of care related to a determination of negligence) can be applied to public officials and offices, what ‘tests’ could be applied to make such a determination, and how the facts of this case would be considered with regards to those tests and relevant precedents – identifying which facts are likely to be in the municipalities favour, and which support a finding of negligence.