What is the test for an alleged duty of care?

When approaching the question of an alleged duty of care, the first issue is whether there is a "sufficient relationship of proximity or neighbourhood" such that, in the reasonable contemplation of the City, carelessness on its part may be likely to case damage to the plaintiffs: Just v. B.C. (1989), 1989 CanLII 16 (SCC), 41 B.C.L.R. (2d) 350 (S.C.C.). Clearly, the answer to this first question is in the affirmative.

Secondly, it is necessary to consider whether there are any considerations which ought to negate, reduce or limit the scope of the duty: Just, supra. Where the defendant is a municipal government and the alleged negligence is grounded in a failure to inspect, it must be determined whether the failure resulted from a true "policy" decision or one which was merely "operational". The latter may attract tort liability; the former will not. The distinction is explained in detail in Brown v. British Columbia, 1994 CanLII 121 (SCC), [1994] 4 W.W.R. 194 (S.C.C.).