Torts: Novel Duty of Care — The Anns/Cooper Framework

Framework. A negligence claim requires a duty of care. Where the relationship falls within or is analogous to an established category, a duty is recognised without fresh analysis (Cooper; Livent). Otherwise the Anns/Cooper test applies: (1) a prima facie duty where harm is reasonably foreseeable and the parties are in a relationship of proximity; (2) residual policy considerations that may negate it. Proximity may be grounded in a statutory scheme, in interactions between the parties, or both (Imperial Tobacco).

Characterising the loss. Dana's destroyed contents are physical damage to property — orthodox territory once duty is shown. The $48,000 levy is pure economic loss: the cost of repairing a defect, not damage caused by it. It is recoverable only within recognised categories — relevantly, the cost of averting a real and substantial danger posed by a defective structure (Winnipeg Condominium; confirmed in Maple Leaf Foods) and negligent misrepresentation founded on an undertaking and reasonable reliance (Livent).

Veritas: established categories. No novel-duty analysis is required. First, the cladding poses a real and substantial danger (risk of panel detachment over the entrance walkway), so the dangerous-defect category supports recovering remediation costs from the party whose negligence created the danger; a certifying engineer stands in a position analogous to the contractor in Winnipeg Condominium. Secondly, misrepresentation: Veritas signed a statutory certificate filed on a public registry whose purpose is to inform purchasers. That is an undertaking inviting reliance, and Dana's purchase falls within its scope (Livent) — defeating Veritas's likely argument that the certificate was addressed only to the developer or the regulator. The contents damage is foreseeable physical loss flowing from the same negligence. A duty is clear.

The Authority: novel claim. There is no established category; indeed Cooper — a regulator of intermediaries sued by persons harmed by the intermediary's misconduct — is closely analogous against Dana. Foreseeability is arguable given the complaints, but foreseeability alone never suffices: proximity against a regulator must be found primarily in the statute (Cooper; Edwards). The Act's objects — licensing, auditing, administering certification "in the public interest" — create duties to the public as a whole. The Authority must balance purchasers' interests against competing concerns, which is inconsistent with a private-law duty to individual buyers. As in Cooper and Edwards, the scheme negates proximity. Could interactions supply it (Imperial Tobacco)? Proximity with specific individuals is possible — Hill; and in Fullowka inspectors who knew the identified miners and mine owed a duty. Here the Authority never dealt with Dana, and the complaints concerned Veritas's practices generally, not an identified building or buyer. No prima facie duty.

Residual policy (in the alternative). Stage two would independently defeat the claim: liability to every purchaser of every certified building is indeterminate; a duty to individual buyers conflicts with the public mandate; it would make the regulator an insurer of certifiers at taxpayer expense (Cooper). Further, the audit deferral resembles a core policy decision — a deliberate budgetary allocation — immune absent irrationality or bad faith (Just; Marchi). The Marchi factors (decision-maker's level, deliberative process, budgetary nature, measurability against objective criteria) cut both ways: Dana can argue that shelving specific complaints was operational inaction dressed in a budget label, which Marchi warns courts not to accept uncritically. Even so, the claim fails first at proximity.

Standard and causation. Veritas plainly breached: a two-hour walkthrough missing widespread membrane defects that any competent inspection would detect falls below the standard of a reasonably competent certifier. But-for causation is satisfied if a competent inspection would have led to refusal of certification, repair before sale, or Dana not purchasing; her reliance evidence supports this, though Veritas will test that reliance. Against the Authority, causation is an independent weakness: Dana must show a timely audit would actually have uncovered the rubber-stamping and produced suspension before the Meridian certificate — inherently speculative.

Conclusion. Dana has a strong claim against Veritas for both the contents damage and the levy. The claim against the Authority should fail at proximity under Cooper, and alternatively on residual policy and core-policy immunity, with causation compounding the difficulty. Practical recovery is constrained by Veritas's thin insurance — the gap driving, but not legally sustaining, the regulator claim.