Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Burke v. Watson & Barnard (A Firm), 2016 BCCA 439

AREAS OF LAW: Negligence; Duty of care; Proximity; Cooper v. Hobart; No reasonable cause of action

~A small number of decisions in other Canadian courts of first instance are not enough to establish a category of cases in which a duty of care has previously been recognized, for the purposes of a Cooper v. Hobart analysis.~


The Respondent, Colleen Burke, acquired her residential property in 2002. She knew that the fence at the back of the property might not align with the property boundary. In September 2007, a Mr. and Mrs. Keefe acquired the adjoining property. The Keefes disputed the location of the fence and received an opinion from the Appellant, Warren Barnard, to the effect that the fence was 12 feet inside the Keefe property. Mr. Barnard had surveyed the property in 1990 and again in 2007. In early 2008, Mr. Keefe tore down the fence. The Respondent immediately commenced an action in trespass. A Supreme Court judge concluded on summary trial that Mr. Barnard’s survey was correct, and dismissed the claim. This decision was appealed and a new trial ordered, in which the judge decided in the Respondent’s favour. The trial judge concluded that the Barnard survey was not correct, and declared the boundary between the properties was marked by the original fence. The judge awarded the Respondent damages in trespass as well as punitive damages and costs. This decision was upheld on appeal except for the punitive damages award. The Keefes were ordered to pay ordinary costs, but the Respondent was out of pocket for her actual legal fees: approximately $181,000. She commenced a proceeding in negligence against Mr. Barnard and his firm, the Appellant Watson & Barnard (A Firm). She also claimed additional damages for future expenses she would incur in correcting the Appellants’ errors. The Appellants brought an application to strike the negligence action as disclosing no reasonable cause of action. They argued that Mr. Barnard owed no duty of care to the Respondent, who was not his client. They also argued that the Respondent’s unrecovered legal costs did not constitute damage in a negligence action. The chambers judge noted that the test to strike a claim is that it has no reasonable prospect of success, and further noted that in some Canadian jurisdictions surveyors have been held to owe a duty of care to adjoining property owners. He found there was a chance of success and dismissed the application. Another order of the Supreme Court determined in law that a judgment in another proceeding delineating the boundary between the properties was binding on the Appellants, although they were not parties to that proceeding. The Court also dismissed an application by the Appellants to strike the claim as an abuse of process, on the ground that the negligence claim should have been brought in the original trespass proceeding. The Appellants appealed all of these orders.


The appeal was allowed. The Court of Appeal primarily focused on the viability of the negligence claim. The Appellants argued that whether a duty of care exists is a question of law and that the chambers judge was required to conduct the two-stage analysis in the Supreme Court of Canada’s decision in Cooper v. Hobart. The Court noted that this was a claim for pure economic loss and, therefore, the Respondent had to show more than foreseeability to make out the claim. She must also show proximity – a relational context between the parties that gives rise to a duty of care. The Court agreed that the chambers judge should have conducted a Cooper analysis. On the first step of the test, the duty of care must be well-established in the jurisprudence in order to negate the need for a full duty of care analysis. The Court of Appeal held that the chambers judge conflated the standard of review for striking a claim on a pleadings motion (plain and obvious) with the test for determining whether a duty of care exists (the Cooper analysis). The cases the judge relied upon to decline to dismiss the pleadings motion did not support a conclusion that there was a category of cases in which a duty of care had previously been recognized. The existing jurisprudence had not settled the issue, and the judge should have proceeded to consider the balance of the Cooper analysis. The Court of Appeal did this, and found that the Respondent’s status as an adjoining landowner did not create a sufficient relationship to establish a duty of care. Given the disposition of the first appeal, the other two were dismissed as moot, without deciding them on the merits.


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