Original Message -----
From: David Cheifetz
Sent: Wednesday, February 01, 2006 8:13 AM
Subject: Re: ODG: Young v Bella 2006 SCC 3
certainly right that part of the problem is the too perfunctory
analysis in Young.
I think you're giving paras 29-32 of Young too generous
a reading. (I'd have written liberal but maybe we shouldn't say
Liberal, in Canada, for a while.) It seems that the university
and the professors treated the Child Welfare Act as a 2nd stage
consideration, not a first stage, and the SCC was quite content
to leave it at that. It certainly didn't suggest otherwise. The
SCC wrote, in Young, at para. 29 that the university
and professors "assert that the duty of care in this case
is negated for policy reasons under the second branch of the test."
The cursory discussion of "policy reasons" that follows
in paras 30-32 doesn't contain any suggestion that the panel thought
the policy focus was Cooper's restated 2nd limb of the
think, if we compare the statements of the two branches of the test
v Bella 2006 SCC 3 at para 30
Cooper v. Hobart,  3 S.C.R. 537 at para 30
Bow Valley Husky  3 SCR 1210 at paras 47, 52
we should conclude the SCC's version in Young is a pre-Cooper
version. It's very close to Bow Valley's version.
I don't think it's right to suggest the SCC thought it was engaging
in any sort of first branch policy analysis. They don't say they
were. They don't mention the policy portion of the first branch.
They mention only the 2nd branch. Shouldn't we be taking them at