Foreseeability is not the only hurdle Ms. Childs’ argument for a duty of care
must surmount. “Foreseeability does not of itself, and automatically, lead to
the conclusion that there is a duty of care”: G. H. L. Fridman, The Law of
Torts in Canada (2nd ed. 2002), at p. 320. Foreseeability without
more may establish a duty of care. This is usually the case, for example,
where an overt act of the defendant has directly caused foreseeable physical
harm to the plaintiff: see Cooper. However, where the conduct alleged against
the defendant is a failure to act, foreseeability alone may not establish a duty
of care. In the absence of an overt act on the part of the defendant, the nature
of the relationship must be examined to determine whether there is a nexus
between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger
are not free-standing. Generally, the mere fact that a person faces danger, or
has become a danger to others, does not itself impose any kind of duty on
those in a position to become involved.
. . . . .
A positive duty of care may exist if foreseeability of harm is present and
if other aspects of the relationship between the plaintiff and the defendant
establish a special link or proximity. Three such situations have been identified by the courts. They function not as strict legal categories, but rather to
elucidate factors that can lead to positive duties to act. These factors, or
features of the relationship, bring parties who would otherwise be legal
strangers into proximity and impose positive duties on defendants that
would not otherwise exist.
The first situation where courts have imposed a positive duty to act is
where a defendant intentionally attracts and invites third parties to an inher-
ent and obvious risk that he or she has created or controls[.]
. . . . .
The second situation where a positive duty of care has been held to exist
concerns paternalistic relationships of supervision and control, such as those
of parent-child or teacher-student[.]
. . . . .
The third situation where a duty of care may include the need to take positive steps concerns defendants who either exercise a public function or
engage in a commercial enterprise that includes implied responsibilities to
the public at large: Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R.
310; Jordan House Ltd. v. Menow, [1974] S.C.R. 239; Doe v. Metropolitan
Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487 (Gen.
Div.). In these cases, the defendants offer a service to the general public that
includes attendant responsibilities to act with special care to reduce risk.
Where a defendant assumes a public role, or benefits from offering a service
to the public at large, special duties arise. The duty of a commercial host who
serves alcohol to guests to act to prevent foreseeable harm to third-party
users of the highway falls into this category: Stewart v. Pettie.
Running through all of these situations is the defendant’s material implication in the creation of risk or his or her control of a risk to which others have
been invited. The operator of a dangerous sporting competition creates or
enhances the risk by inviting and enabling people to participate in an inherently risky activity. It follows that the operator must take special steps to
