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Foreseeability and Proximity v. Foreseeability and Remoteness – Similar, but Distinct

By Celina Stoan

On May 4, 2023, the Ontario Court of Appeal heard the appeal of the Town of Milton from the judgment of Justice Mills, dated June 28, 2022, dismissing the third party claim of the Town. In its decision in Case v. Pattison, 2023 ONCA 529, the Court of Appeal allowed the appeal, and set aside the dismissal of the third party claim.

Superior Court Decision

This matter involved a pedestrian and motor vehicle accident. Mr. Case, the plaintiff pedestrian, brought the action against the Pattison defendants (driver and owner of the vehicle involved in the accident) as well as the Town of Milton. The plaintiff and the Pattison defendants both claimed against the Town of Milton based on alleged insufficient street lighting at the subject intersection due to a missing luminaire.

The Town of Milton commenced a third-party claim against Milton Hydro, alleging that Milton Hydro negligently removed the luminaire. Milton Hydro and the Town of Milton brought competing summary judgment motions.

Justice Mills, the motion judge, assumed that Milton Hydro removed the luminaire four years prior to the accident, and determined that Milton Hydro did not owe an ongoing duty of care to the plaintiffs or the Town regarding street lighting. This responsibility was solely that of the Town.

Justice Mills placed emphasis on the intervening four years and the intervening annual inspections by the Town, and found that the harm to the plaintiff was not reasonably foreseeable at the time that the luminaire was removed. In addition, Justice Mills found that the Town’s failure to discover the missing luminaire and remediate the issue negated the required proximity between Milton Hydro and the plaintiff and constituted an intervening act which broke any chain of causation that may have existed to establish any liability on Milton Hydro.

Court of Appeal – Analysis

The Court of Appeal analyzed the requisite components of a successful claim for negligence. Mainly: proof of a duty of care, breach of the standard of care, compensable damage and causation. The appeal focused on Justice Mills’ treatment of the duty of care and causation elements of this analysis.

Duty of Care

Initially, the Ontario Court of Appeal noted that Justice Mills should have determined whether the duty of care in issue was a novel duty. If it was a novel duty, then a relationship of proximity between Milton Hydro’s removal of the luminaire and the type of loss or harm to the plaintiff was required to assess foreseeability. The Court of Appeal emphasized that the focus was on “foreseeability of harm to the victim, and not the specific interceding events surrounding that harm”.

If a prima facie duty of care was found to exist, residual policy considerations established by Milton Hydro should then be considered which would negate the imposition of the duty. Justice Mills did not reach this step in the analysis.


If Justice Mills was satisfied that a duty of care was owed by Milton Hydro to the plaintiff, and that this standard was breached, she would then need to consider causation. Specifically, whether Milton Hydro’s removal of the luminaire was a factual cause of the harm. This requires the application of the “but for” test.

In addition, Justice Mills had to consider whether the removal of the luminaire legally caused the damages suffered. This causation analysis is rooted in assessing remoteness – specifically, whether the plaintiff’s harm was a reasonably foreseeable consequence of the removal of the luminaire. If it was not reasonably foreseeable, then the harm would be too remote.

The Court of Appeal noted that the remoteness inquiry within the causation analysis is distinguishable from the foreseeability inquiry within the duty of care analysis because remoteness focuses on the actual injury suffered by the plaintiff whereas the duty of care analysis focuses on the type of injury.

Novus Actus Interveniens

The question of intervening acts arises in the causation analysis. The correct analysis was:

  1. whether the Town of Milton’s alleged failure to inspect was reasonably foreseeable at the time of Milton Hydro’s assumed negligent removal of the luminaire; and
  2. whether the Town’s alleged negligence compounded Milton Hydro’s earlier assumed negligence, or whether it fully broke the chain of causation and fully stopped the consequences of Milton Hydro’s first act.

Justice Mills was also required to consider whether the harm to the plaintiff would have occurred despite Milton Hydro’s removal of the luminaire. In short, whether the Town’s alleged failure to inspect was the only cause of the harm and that Milton Hydro’s negligence played no role.

Court of Appeal – Decision

A three member panel of the Court of Appeal unanimously found that Justice Mills’ legal analysis was flawed, as she conflated her duty of care analysis with her causation analysis, and erred in her consideration as to whether the Town of Milton’s alleged negligence constituted an intervening act that wholly broke the chain of causation. The appeal was allowed, the dismissal of the third party claim was set aside, and the third party claim was remitted for trial with the main action.

In rendering their decision, the Court of Appeal emphasized the following:

  • foreseeability and proximity properly fall under the duty of care analysis, and are distinct from foreseeability and remoteness which properly fall under the causation analysis;
  • the relevance of a potentially intervening act should not be considered until the causation analysis;
  • alleged statutory duties do not necessarily mean that a common law duty of care cannot be owed by another;
  • subsequent negligence of a party may not necessarily extinguish original negligence;
  • the passage of time, by itself, does not necessarily determine foreseeability or proximity under the duty of care analysis or the causation and intervening act analysis;
  • the time for determining foreseeability is at the time of the allegedly tortious act.


The passage of time does not, alone, diminish a party’s negligence. Just because they have been lucky or fortunate and their negligence has not caused any harm for days, months or years does not mean that the original act was not negligent and that liability cannot attach for same.

In order for an act to be considered an intervening act, the act must entirely break the chain of causation such that it can be considered be the only cause of the harm.