[1]         These appeals arise from an order dismissing the appellant homeowners’ claims in negligence against former approving officer, Mr. Ray Parfitt (the “Approving Officer” or “Mr. Parfitt”), who authorized a subdivision (the “Development”) in the District of Sechelt (the “District”) that was later declared to be unsafe for occupation as a result of geotechnical instability. The background of these appeals is set out in full in the related appeals arising out of the same factual matrix, indexed as 2021 BCCA 349, decided concurrently with these. I will not repeat that background in detail here.

[2]         For the purposes of these reasons, it suffices to say that Mr. Parfitt approved the development of the abovementioned subdivision in September 2006. Prior to approving the subdivision, Mr. Parfitt required the developer (Concordia), who was the applicant, to commission reports prepared by engineers attesting to the geotechnical state of the land, and to register against the subdivided lots covenants under s. 219 of the Land Title Act, R.S.B.C. 1996, c. 250 [LTA]. The effect of those covenants is evaluated in the companion appeals. In 2019, after the subdivision had been constructed, the District declared a state of emergency, and issued an evacuation order to resident homeowners in the subdivision as a result of emerging sinkholes and other geotechnical issues. Subsequently, the lot owners initiated eight actions against the District, the Province, the developer, and Mr. Parfitt, among others. The claim against Mr. Parfitt sounds in negligence on the basis of his approval of the subdivision despite the existence of geotechnical risk, and without taking certain preventive safety measures. The District and Mr. Parfitt brought an application before the judge to strike those portions of the appellant homeowners’ pleadings against Mr. Parfitt as disclosing no reasonable claim.

[3]         Mr. Parfitt is a government employee. The matter before the judge hinged on whether Mr. Parfitt was in a relationship of sufficient proximity to the homeowners for it to be just to impose a private law duty of care on him. The judge also analysed whether residual policy considerations exist such that a duty of care would be negated in any event, and whether the statutory immunity provisions of s. 738(2) of the Local Government Act, R.S.B.C. 2015, c. 1 [LGA], applied in this case. The judge ultimately concluded that a private law duty of care was not owed to the homeowners by Mr. Parfitt, as proximity could not be established; that, even if there were such a duty, it would be negated by residual policy considerations; and that Mr. Parfitt was in any event immune from liability by virtue of his position under s. 738(1) of the LGA. He struck those portions of the appellants’ pleadings grounding the alleged liability of the Approving Officer, and dismissed the claims against him. The appellants appeal that decision.

[4]         As the matter below was brought as an application to strike under R. 9‑5 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, the question to be answered on appeal is whether the judge erred in concluding that it is plain and obvious the appellants’ claims in negligence against the Approving Officer are bound to fail.

[5]         The judge described the appellants’ claims against Mr. Parfitt in the following way:

[6]         The chambers judge began by assessing whether the Approving Officer owed a private law duty of care to the appellants. He canvassed the elements of the Anns/Cooper test, set out in Cooper v. Hobart, 2001 SCC 79 [Cooper]. He found first that there is no sufficiently analogous precedent which determines the existence or non‑existence of a duty of care in these circumstances. He concluded it would be unsafe to rely on the decision in Grande v. Nelson, [1989] B.C.J. No. 476 (S.C.) as a sufficiently analogous precedent, as that case was decided before the prevailing duty of care analysis was developed in the jurisprudence, and the question of proximity was analysed only briefly. Having found no applicable precedent, the judge went on to analyse foreseeability and proximity. He concluded that the harm which resulted from the Approving Officer’s alleged negligence was a reasonably foreseeable consequence of his actions in approving the Development, as the risk of geotechnical instability for the land was known at the time of the approval.

[7]         Turning to proximity, however, the chambers judge concluded that there was not a relationship of sufficient proximity between the appellants and the Approving Officer such that it would be just to impose a private law duty of care. The judge found that the provisions of the LTA from which approving officers derive their authority were critical to the proximity analysis, holding that “the goal of the statutory scheme applicable to approving officers is to have the approving officer determine whether a subdivision is in the public interest”: at para. 74. Accordingly, the judge concluded that no prima facie duty of care arose between the Approving Officer and the appellants. If he was wrong about that conclusion, the judge also canvassed the second stage of the Anns/Cooper test, and determined that residual policy considerations would negate a duty of care in any event. Those policy considerations were of two sorts. First, that an approving officer’s decision whether or not to approve a subdivision constitutes a “core policy decision” of the kind described in R v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 90 [Imperial Tobacco], and is, therefore, immune from tort liability. Second, the judge found that imposing a duty of care in these circumstances would give rise to indeterminate liability. Finally, the judge accepted the alternative submission of the respondents that Mr. Parfitt was protected by the statutory immunity provisions of the LGA: see s. 738(2) (formerly s. 287(2) in 2006 when the subdivision was approved).

[8]         Only the judge’s conclusions as to foreseeability are not challenged by the appellants.

[9]         While the appellants initially did not challenge the conclusion that no sufficiently analogous precedent established a duty of care, they later recast their argument in reply to argue that precedent does exist as the Supreme Court has stated in cases like Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165 [Hercules Managements] and Cooper that reasonable foreseeability of harm or the risk of harm alone establishes proximity where the action is based on physical harm to the plaintiff or the plaintiff’s property. This argument was not advanced before the chambers judge, and the appellants agreed the respondents could file additional written submissions to address it.

[10]      The appellants also submit the chambers judge misconceived the concept of proximity in finding the relationship between the Approving Officer and the homeowners was insufficiently proximate to justify imposing a duty of care. A primary reason for this, in their view, is that the judge erroneously characterized an approving officer’s role within the statutory scheme as one of determining whether a subdivision is “in the public interest.” At the residual considerations stage of the Anns/Cooper test, the appellants’ position is that the chambers judge erred in finding it plain and obvious that either of the two policy considerations he identified was sufficient to negate a private law duty of care in this case. Finally, the appellants submit that the chambers judge erred in finding the appellants’ claims against the Approving Officer were barred by s. 738(2) of the LGA, as Mr. Parfitt is not a “local public officer” within the meaning of that provision. Alternatively, they say s. 738(2) does not apply where the local public officer was guilty of “gross negligence” which, they submit, is made out on the facts.

[11]      The respondents, for their part, submit that the chambers judge was correct to find that an approving officer is provided wide discretion by the LTA to determine whether the approval of subdivision of lands is in the public interest. This suggests the legislature intended to negate an approving officer owing a private law duty of care. Hence proximity cannot be established. Moreover, the respondents submit the decision to approve subdivision of land is clearly a policy decision and, therefore, immune from tort liability. They also say that recognizing a duty of care in these circumstances would open up a municipal approving officer to indeterminate liability. Finally, the respondents say that the Approving Officer is plainly and obviously a “local public officer” within the meaning of the LGA, and immune from the appellants’ claims in any event.

[12]      The well‑known Anns/Cooper test for assessing whether a private law duty of care exists comprises two stages. At the first stage, the court must ask whether the existence of a duty of care has been established by precedent in sufficiently analogous circumstances. If no analogous precedent exists, the court must assess whether a prima facie duty of care arises between the parties, which involves asking whether the harm that was suffered by the plaintiff was reasonably foreseeable, and whether the parties were in a relationship of sufficient proximity such that imposing a duty of care would be just in the circumstances. If a prima facie duty arises at the first stage, the court then evaluates whether there are any residual policy considerations which should negate or limit that duty: Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General), 2015 BCCA 163 at paras. 50–51; Cooper at para. 30. This case ultimately turns on the question of proximity, but I will begin by addressing the appellants’ new argument that a duty of care is established by precedent, before turning to an analysis of proximity.

[13]      Much of the appellants’ argument in this appeal emphasizes the fact that the Approving Officer was aware of the risk to the appellants if the subdivision were approved. The appellants pointed to documents such as the engineer’s report to demonstrate that the Approving Officer was aware of the risk in approving the subdivision, and proceeded anyway. The respondents, throughout, have maintained that reasonable foreseeability, without more, does not establish proximity, or give rise to a duty of care. In reply to the respondents, the appellants raised for the first time the argument that reasonable foreseeability does determine proximity and, in fact, one of the categories in which precedent indicates that proximity may be presumed is the case where physical harm to the plaintiff’s person or property was reasonably foreseeable to the defendant.

[14]      In support of their position, the appellants point to Hercules Managements, in which the Supreme Court stated that “[i]n the context of actions based on negligence causing physical damage, determining whether harm to the plaintiff was reasonably foreseeable to the defendant is alone a sufficient criterion for deciding proximity”: at 189. In Cooper, the Supreme Court affirmed that “situation[s] where the defendant’s act foreseeably causes physical harm to the plaintiff or the plaintiff’s property” is a recognized category in which proximity may be presumed: at para. 36.

[15]      While the cases cited are represented accurately, the appellants’ argument ignores subsequent Supreme Court of Canada jurisprudence, in which the Court retreated from broad categories of predetermined proximity, generally, and from reasonable foreseeability of harm as one of those categories, specifically. For example, in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 [Deloitte], Justices Gascon and Brown, writing for the majority, warned against overbroad categories of analogous precedent:

[16]      Then, in Rankin (Rankin’s Garage & Sales) v. JJ, 2018 SCC 19, Justice Karakatsanis, writing for a majority of the Court, rejected the application of a category of established proximity resting solely on reasonable foreseeability of physical harm:

[17]      Similarly here, applying such a broad category so as to recognize a prima facie duty of care on the basis of reasonable foreseeability of physical injury alone would ignore any distinction between a defendant who is a member of the general public and a government defendant. As I will examine in greater detail below, courts have consistently emphasized that different considerations affect the proximity analysis where the defendant is a public official. Primarily, the proximity analysis in claims against government officials is grounded in the governing statutory framework: Imperial Tobacco at paras. 43–46. Moreover, in the above passage from Deloitte, Gascon and Brown JJ. emphasized that an overbroad approach to the creation of established categories would have the effect of bypassing important second‑stage residual policy considerations. Where a government regulator is involved, those policy considerations are often critical to the analysis, including the question of whether a decision was a policy or operational decision, and whether recognizing a private law duty of care would expose the official to the spectre of indeterminate liability. In short, applying a category of proximity based on foreseeable physical harm alone to this case ignores considerations particular to public officials and runs contrary to the guidance in Rankin and Deloitte.

[18]      It is, in my view, clear that where negligence is alleged against a public authority, a court must undertake a proximity analysis rooted in the governing statute. This is the upshot of numerous cases across Canada involving reasonably foreseeable risk of physical harm to person or property, including cases from the Supreme Court of Canada and this Court.

[19]      As no established category of proximity is engaged, I must examine the question of proximity to determine whether the judge erred in concluding a prima facie duty of care does not arise in the circumstances. The appellants need to demonstrate more than the reasonable foreseeability of the risk to future lot owners of approving the subdivision. The judge accepted, rightly, that that risk was reasonably foreseeable.

[20]      Proximity is found where there exists between the parties a close and direct relationship, having regard to the parties’ expectations, representations, reliance on one another, and the property or other interests involved: Cooper at paras. 32–34. The proximity analysis both identifies whether the nature of the relationship between the parties is one in which a duty is owed, and delineates the scope of the rights and duties which flow from that relationship: Deloitte at para. 31. As this Court described in Wu v. Vancouver (City of), 2019 BCCA 23 at para. 52 [Wu], the proximity analysis is complicated where the alleged tortfeasor is a public official acting pursuant to statutory authority:

[21]      This Court then noted that it will be rare that a private law duty of care will be imposed onto regulators carrying out their statutory functions (at para. 58):

[22]      Waterway Houseboats Ltd. v. British Columbia, 2020 BCCA 378 [Waterway], is the most recent decision of this Court evaluating the concept of proximity in cases where a private law duty of care is alleged to be owed by a public regulatory authority. Waterway is now the leading case in this province establishing what must be shown to establish proximity to ground a prima facie duty of care. In Waterway, this Court held that there are two conceptual stages involved in determining whether sufficient proximity exists between a government regulator and a plaintiff to justify the recognition of a duty of care owed by the regulator (at para. 243):

[23]      Courts will more readily find a private law duty of care where the regulator is under a statutory duty to act, as opposed to exercising only permissive powers: Waterway at paras. 229–30. In contrast, where a regulator acts in the public interest, courts will be reticent to recognize a private duty of care lest it conflict with this objective: Waterway at para. 228, citing The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency, 2013 BCCA 34 at para. 55, leave to appeal ref’d [2013] S.C.C.A. No. 134 [Los Angeles Salad].

[24]      The appellants say Waterway does not set out a rigid approach which must be applied in any case to assess proximity where a duty of care is alleged to be owed by a regulatory official. The appellants submit that discerning legislative intent is only realistically possible in situations where a public authority has been deliberately assigned a prescribed role within a legislative scheme for some clear regulatory purpose. The appellants also say Waterway involved the consideration of whether a private law duty of care was owed by a public authority responsible for administering a legislative scheme for the benefit of the public generally. In the appellants’ view, the Approving Officer’s function does not fall within the parameters considered in Waterway.

[25]      I disagree. Waterway provides the authoritative framework for the proximity analysis, or the application of the “neighbour principle”, to a regulator and, as such, the duty of care analysis in this case must be conducted by applying the Waterway approach. That approach identifies the first step in the proximity analysis; one which requires courts to first consider legislative intent where a public official is alleged to owe a private law duty of care. Courts are well positioned to interpret legislation and ascertain legislative intent in line with the guidance in Waterway. Indeed, although the decision of the chambers judge was released prior to this Court’s decision in Waterway, the judge nonetheless recognized the need to look first to the applicable statutory scheme in the proximity analysis.

[26]      Nor do I accept, as the appellants contend, that the role of an approving officer is distinct from other regulatory authorities in a way that makes the application of the Waterway framework impracticable or impossible. At this point, it is useful to set out the relevant provisions of the LTA according to which an approving officer exercises authority to approve or decline to approve the subdivision of lands.

[27]      Section 85(3) affords an approving officer the discretion to refuse to approve a subdivision in the public interest:

[28]      Sections 86 and 87 set out a list of matters to be considered by the approving officer in assessing an application for a subdivision. These considerations apply without limiting the public interest criterion in s. 85(3):

[29]      The appellants say that the development over time of the role of an approving officer through the provisions of the LTA has been slow and unfocused, so that discerning any legislative intent to create or exclude a private law duty of care with respect to this role is impossible. They submit the role of the approving officer within the scheme of the LTA is limited; it is essentially that of a gatekeeper whose only role is to make a binary choice to approve or not to approve a subdivision and whose discretion is tightly constrained by the Act. Moreover, the appellants say the chambers judge erred by taking “the public interest” in s. 85(3) of the LTA to be the overriding consideration in an approving officer’s exercise of discretion because it is only one of many grounds upon which an approving officer may refuse to authorize a subdivision—others, set out in s. 86(1)(c), impact a smaller class of people. Section 86(1)(c)(v) in particular, which authorizes an approving officer to refuse to approve a subdivision due to the presence of geotechnical risks, has a private and protective purpose—namely, the avoidance of injury or damage to property with respect to a defined class of subsequent owners (in this case, the appellants).

[30]      The chambers judge found the LTA informed critically whether proximity exists because s. 85(3) expressly provides that an approving officer may refuse to approve a subdivision if the officer believes it is not “in the public interest”. The judge found the public purpose of the statutory scheme was further reflected by the other grounds upon which an approving officer may refuse to approve a subdivision in s. 86(1)(c), including due to sufficiency of highway allowances, public utility costs, or agricultural impact. Moreover, the judge relied on 0742848 B.C. Ltd. v. Squamish (District), 2017 BCSC 2177 [0742848 B.C. Ltd.], in which the court held that an approving officer acts in the public interest. He noted that, practically speaking, this duty may at times be expected to conflict with the private interest of lot owners. Taking this potential for conflict into account, he concluded the legislature had clearly intended for an approving officer’s duty to be owed to the public generally, rather than to potential occupants of the subdivision.

[31]      I can see no error in the judge’s conclusion simply because considerations exist in the extensive list set out by s. 86(1)(c) which might arguably be said to affect a narrow class of people rather than the public at large. Specific effects arising from a statutory scheme aimed at the public good does not, without more, establish proximity: Wu at para. 56. I agree with the judge that the public interest is the overarching consideration pursuant to which approving officers exercise their authority. This is evidenced by the fact that all of the other considerations which an approving officer may take into account apply without limiting s. 85(3). The public interest criterion is further reinforced by s. 90, which provides that the Lieutenant Governor in Council may order the Registrar of Land Titles not to receive a subdivision plan for deposit where it appears that plan “is against the public interest,” whether or not that plan has been approved.

[32]      Moreover, I am of the view that the considerations enumerated in s. 86(1)(c) and s. 87 are matters of the public interest as they relate to subdividing a parcel of land. Those considerations include the cost of public utilities, the anticipated impact on nearby properties and agriculture, and conformity with applicable bylaws. I do not agree that s. 86(1)(c)(v), in particular, has a “private and protective purpose”, as the appellants suggest, so as to place the Approving Officer in a relationship of proximity with the appellants. While lot owners in a subdivision would certainly be among the classes of people affected by the risk of flooding, avalanches, and erosion on a subdivided land, so too is the public generally, including surrounding property owners and the District. A statutory scheme aimed at promoting the public good does not lose that quality, and proximity is not established, simply because a group of plaintiffs are individuals who stand to benefit from the scheme’s proper administration: Wu at para. 56.

[33]      This is not a case where a public official has a positive duty to act in the private interests of a clearly defined class of people. For example, in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, discussed in Waterway at para. 230, the Court concluded that a private duty of care was owed by mining inspectors to mine workers to inspect the mine and, if it was unsafe, to order that work to cease immediately. An approving officer operating under the LTA, by contrast, has powers that are largely permissive in nature. For example, the officer is under no obligation to decline to approve a subdivision if there exists a risk, even a high one, of geotechnical problems. Section 86(1)(c) provides that geotechnical risks are one ground of many upon which an approving officer “may” refuse to approve a subdivision. Section 86(1)(d) makes clear that a subdivision may be approved despite the existence of those risks, as it provides the approving officer may mitigate risk by requesting from a subdivider as a condition of approval a geotechnical assessment and/or a covenant pursuant to s. 219 of the LTA, both of which were requested and provided in this case. The ability of an approving officer to place future lot owners, such as the appellants, on notice of geotechnical risks and to request assurances from applicants as a condition of approval does not support a finding of a private law duty of care owed to future lot owners.

[34]      In 0742848 B.C. Ltd., Madam Justice MacNaughton considered the statutory framework governing approving officers and summarized it in the following manner:

[35]      I agree with that description. Part 7 of the LTA curtails the common law right to subdivide land, and affords an approving officer with wide discretion to refuse to approve a subdivision where it is against the public interest. That involves balancing and weighing risks and competing interests, including those of neighbouring landowners, the municipality and lot owners in the subdivision, to arrive at an overarching determination that is in the public interest.

[36]      As the chambers judge recognized, the possibility of injury to the appellants arising from the approval of a subdivision despite the existence of some geotechnical risk naturally creates the potential for conflict with the private interests of lot owners. Yet, that possibility is one expressly contemplated by the legislative scheme. If the Approving Officer was exposed to liability any time a purchaser of subdivided lands took issue with the approval of a subdivision despite the presence of geotechnical risk, the ability of the Officer to fulfill their public duties under the legislation may be frustrated. That potential for conflict militates against a finding of proximity in the circumstances: see Los Angeles Salad at para. 55; Imperial Tobacco at para. 47; Cooper at paras. 43–44.

[37]      After concluding that the statutory scheme did not support a finding of proximity, the chambers judge went on to examine whether any special relationship existed between the parties to give rise to a duty of care. He concluded none existed, as there was no argument put forward by the appellants that Mr. Parfitt had made any specific representations or developed a special relationship with either the appellants or the property developer.

[38]      Because the judge was not operating under Waterway, he took legislative intent to be informative, but not determinative, of the question of proximity. Applying Waterway, the proximity analysis ends upon concluding that the legislation forecloses the possibility of a private law duty of care. I am of the view the statutory scheme of the LTA precludes, by necessary implication, a private law duty of care for the reasons explained above. Accordingly, a prima facie duty of care cannot be established. However, had I concluded that it was not clear that the statute foreclosed a private law duty, I agree with the chambers judge that no special relationship arising out of the interactions of the parties exists to justify imposing a duty of care on the Approving Officer. There is nothing to show any kind of relationship between the appellants and the Approving Officer any different from the relationship between “the regulator and that part of the public impacted by the regulator’s work”: Waterway at para. 243. Nor is there evidence of specific representations, reliance or interactions between the appellants and the Approving Officer which would support a finding of proximity. The Approving Officer, by all accounts, interacted only with the developer, who in turn interacted with the appellants—this further level of remove does not suggest a close and direct relationship: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 33.

[39]      As I have concluded the chambers judge was correct to find that there was insufficient proximity to justify imposing a duty of care in the circumstances, it follows that no prima facie duty of care can be made out, and it is unnecessary to evaluate the other two grounds raised by the appellants; namely, that the judge erred in concluding residual policy considerations would negate a prima facie duty of care if he was wrong that one did not arise, and that the Approving Officer is, in any event, immune from liability in negligence by virtue of s. 738(2) of the LGA. The judge was correct to conclude it was plain and obvious the Approving Officer did not owe a common law duty of care to the appellants at the first stage of the Anns/Cooper inquiry. It follows that the appellants’ claims in negligence against Mr. Parfitt have no reasonable prospect of success.

[40]      One final matter needs to be addressed. The appellants contend in reply that their actions should not be dismissed without consideration being given to whether they should be given leave to amend their pleadings as follows:

[41]      It is submitted that the existing pleadings provide the material facts to support the amendment, which is said to be based on Simpson. I take it that the cause of action is alleged to amount to something other than negligence.

[42]      I am not satisfied that this Court should permit the amendment. The appellants disavow any allegation of dishonesty. The request is made for the first time in a reply factum. I am not persuaded that it has any prospect of raising a reasonable cause of action in light of these reasons. Accordingly, I think this Court should exercise its gate‑keeping function and refuse the amendment.

[43]      I would dismiss the appeals.