A corrective justice account of building authority liability in Canadian negligence law

In its decisions in Kamloops v Neilsen and Rothfield v Manolakos, the Supreme Court of Canada adopted a policy-driven justification for imposing liability on building authorities whenever the negligent exercise of their building regulation mandate led to any member of the public suffering any form of foreseeable loss. From its beginnings, this legal doctrine was incoherent and unjustified. It has also become an aberration within Canadian law as, beginning with the decision in Cooper v Hobart, the Supreme Court of Canada resiled from its earlier policy-based approach to imposing liability. What is required is a repudiation of the current legal doctrine, and its replacement by a new understanding of building authority liability. This new understanding is based on corrective justice, at a theoretical level, and a rights-based understanding of negligence law, at the doctrinal level. The current basis of building authority liability, with liability arising from the ability to foresee possible future losses, should be replaced by an inquiry into whether a building authority acted in such a way that it assumed responsibility to a particular person and caused that person to shift their behavior in detrimental reliance on that assumption. This new basis for building authority liability is assisted by the recent development within Canadian law of a rights-based understanding of claims for negligent misrepresentation and negligent performance of a service, an understanding that specifically employs the concept of an assumption of responsibility. Adapting this approach to building authority liability will allow it to be coherent both internally and with the wider field of Canadian negligence law.