"The Elusiveness Of A Workable Test": Government Liability For Negligence

The Supreme Court of Canada's latest pronouncement on government liability for negligence has muddied the waters. It is now more difficult than ever to determine whether particular government conduct falls within the protected realm of policy, foreclosing any negligence claim.

R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 arose from two lawsuits against tobacco companies alleging wrongful conduct towards smokers in British Columbia. A central plank of the lawsuits was that the tobacco companies communicated to smokers that low-tar cigarettes were safer than regular cigarettes when they allegedly were not.

While denying the allegations against them, the tobacco companies made third-party claims against the government of Canada. The companies alleged that Health Canada had told them, and smokers, that low-tar cigarettes were safer and had urged smokers to switch to those cigarettes. It had also told the companies when and how to warn smokers about the risks of