 to have anything to do with it, and he shall be heard. God save the dean! Good evening. Not sure if the microphone is working. So good evening, everyone. Welcome to the 2023 Schild Mood Competition, one of the highlights of the academic year at the Schultek School of Law. The Smith-Schild dates back to 1927 and is one of our most prestigious mooting events. Previous winners of the Smith-Schild have included legal trailblazers such as Justice Bertha Wilson, the first woman to sit on the Supreme Court of Canada, and some other names that students may be familiar with, such as Dean Emeritus William Charles, Professor Emeritus Bruce Archibald, Professor Emeritus Wayne McKay, Professors Philip Saunders and Steve Coglin. Our bench this year is comprised of the Honorable Justice Michael Wood, Chief Justice of Nova Scotia, the Honorable Justice Ann E. Smith, Supreme Court of Nova Scotia, and Mr. Mark Scott, President of the Nova Scotia Barrister Society. I thank each of them for lending their considerable time, efforts, and talents to this mooting event. Thank you to Stuart McKelvie for funding this year's representative as Mr. Scott Campbell. Thanks also to Professor Jeremy Ryan for preparing this year's problem, and my assistants Rebecca Parker and Ms. Elizabeth Sanford for organizing everything. Please note that this event is being audio and videotaped. Please take the time now to turn off any phones or any electric device. Now following the mood, photos will be taken of the judges and the participants, and reception will be held in the faculty lounge of the third floor. All are welcome to that reception. Without further ado, I will turn proceedings over to our exceptional mooters, Alita Dwell, Amelia Eaton, Essie Mejina, and Harper Metter. Good evening Chief Justice Wood, Justice Smith, and Justice Scott. My name is Alita Dwell, and I'm here with my co-counsel, Essie Mejina. Together, we represent the appellant, Ms. Ira Jane Abdullah. On behalf of the class of C. Ridge Heights residents in the matter of Abdullah and the municipality of Queensborough. My friends, Harper Metler and Amelia Eaton represent the respondent, the municipality of Queensborough. The facts of this matter are set out at paragraphs five through 20 of the appellant's factum. Unless this honorable court would like me to recite the facts, I would propose to proceed directly to argument. Thank you. This appeal is about giving unwitting home buyers whose homes were literally swept away to see the opportunity to make their case against the municipality of Queensborough who approved the development of the homes without warning of the known flood risk. The first issue in this appeal requires the court to make the following two conclusions. First, that the decision to approve the development agreement without issuing a warning was not a core policy decision that attracts immunity from liability. And two, if it was a core policy decision, it was a rational and made in bad faith. Shielding the government from liability is a serious step that should not be taken lightly. Denying it an individual or group of individuals, the right to even have their day in court should only be used in rare circumstances where allowing review by the court would seriously threaten the separation of powers. If this doctrine is overused, it threatens the important principle of access to justice. As will be demonstrated, the nature of this decision, the purpose of the doctrine of core policy immunity, the application of the factors set out by the Supreme Court of Canada and Nelson and the clear irrationality and bad faith of the decision, demonstrate that the decision to approve the development agreement without issuing a warning of the known flood risk is not a decision that should be shielded from liability. I will begin by discussing the nature of the decision and the purpose of the doctrine of core policy immunity. These arguments can be found at paragraphs 29 to 40 of the appellant's factum. Throughout this analysis, it's important to keep in mind that core policy decisions are a narrow subset of discretionary decisions. The purpose of immunity for these decisions is to protect the legislative and executive branch's core institutional roles and competencies necessary for the separation of powers. Essentially, the question that we must ask here tonight is whether this is a matter that should be left to the governments or whether it is one in which courts can intervene, keeping in mind that courts' ability to intervene here is limited. We're not allowing the court to mandate that a certain decision be taken, rather to review the actions of the municipality to determine whether the standard of care was complied with. Now here, we are not talking about a decision made by the municipality after years of debate and deliberation, which involved consultation with the province and experts in order to create a new policy that predetermines the boundaries of future decision-making and applies to the municipality at large. Rather, the decision at hand was a decision made following the Municipal Government Act, the land use bylaw, and the municipal planning strategy to approve the development of a bare land condominium without warning of the known flood risk. So just if I can interrupt you on that point, may that you've described the decision that way a couple of times now, did the municipality have the ability to grant some sort of conditional approval? You're suggesting that it's not just an approval of the development, you're saying it's an approval with an amadeline with some sort of warning or some sort of caution. Does the Council have the authority to issue a conditional approval? As explained by my friend in the respondent factum, the municipality had three options in this situation to approve the development, to reject the development or to approve with a warning. So the appellant agrees with the respondent in that in that the municipality had three options in this situation. One of them was approving with the warning. The guidelines set out by the policies that I've mentioned, the act and the bylaws, they create certain requirements that need to be met. There's a very small amount of discretion and that's where the issuing with a warning comes in. Throughout this analysis, it's also- I'll just finish that off. So every decision that the municipality makes with respect to the development, they should always be turning them on to that third option, whether they should issue a warning if they approve it. In this case- Well, in this case, when we're talking in general, we're saying every time a development agreement is up for approval, they must consider whether there's a warning or not to go. The facts of this situation present that opportunity to issue a warning. What other situations may present, it would depend on the facts of that situation. In this case, as agreed by my respondent, the municipality had three options and one of those was to approve with a warning. And not to get tuned all down with any warning aspect, but what would that warning look like? And what would be the basis for making the warning? The basis of the warning would be the known flood risk as represented by the report from Northrod. Because, okay, but then that would mean then that the municipality would have had to have felt comfortable with the naturality to review the Northrod report to make such a warning. And is that not part of an issue in this case? That's right. Sorry, I missed the end of that. The municipality, as I understand it, said, well, look, we'll park the Northrod report for now, but we'll make sure it comes forward the next time around. So as I understand it, they were saying, well, we didn't have time. So you're saying they should have issued, or they could have issued a warning based on the Northrod report, even though they hadn't fully examined it. So although the municipality staff hadn't done a complete study of the Northrod's report, the municipal council still had information of the known flood risk. There's evidence that all the counselors had read the report. One of the counselors in their email indicates that they've all read the report. This is counselor Jean who states that questions, whether they really need staff to study a report that they've all read themselves. And that the report presents some compelling arguments of the flood risk. So they didn't need to adopt the exact conclusion of the report in order to issue a warning. There was enough evidence that there was a flood risk, whether that was the exact one in 20 year flood risk presented by the Northrod's report. Any report will have some uncertainty. This is all predictions of flood risk. And the municipal council had information of an increased flood risk from this report. This report was conducted after Hurricane Dorian 2019 in which the memo from staff had indicated this created a cause to reconsider how they can, how they think about living in these coastal areas and the risk of flood. And so that's what the Northrod's report is. And I'll let you move on. I don't want to jail to make all your arguments, but the warning is predicated on some sort of acceptance that what's in your report has the lead. Acceptance that there is this increased risk of flooding, whether they accept the exact conclusion from the Northrod's report or merely that it presented an increased risk of flooding. We know that Northrod's was praised within the scientific community for their rigorous approach, their scientific based approach to their reports. The, we know that the staff there were trained, the two main individuals at Northrod's were highly intelligent in this area. So there's quite a bit of credibility to that information that there was an increased flood risk. I'll briefly mention the importance of considering the nature of this decision throughout the analysis. This court in Nelson indicates many times that the focus throughout the analysis must be on the nature of the decision. In this case, it was an operational decision made following policies that were set out. It was narrow in scope and affected a limited number of people. Court policy involves planning and predetermining the boundaries of a government's undertaking. The municipal government act, the land use bylaw and the municipal planning strategy were the policies that predetermined and planned the future decision makings with respect to development agreements. This court should be careful not to go down a slippery slope where all decisions by municipal council are considered ones of core policy and complete crown immunity is restored. Now, in the interest of time, I'll move to speak about the second Nelson factor, the process by which the decision was made. These arguments can be found at paragraphs 45 to 51 of the appellant's factum. Core policy decisions are deliberative. They require debate, possibly in a public forum. They require input from different levels of authority, have broad application and are prospective in nature. The decision to approve the development without issuing a warning was not such a decision. There's no evidence that there was input from different levels of authority. This decision was made solely by the municipal council. Even the municipal staff did not report to council on this decision, which is significant as we know that staff report to council on big picture policy decisions. The fact that they did not report on this specific decision illustrates it was not viewed as one of core policy. There was also not sufficient or sustained deliberation and debate in this case. Even operational decisions will have some deliberation, but for it to be a core policy decision, that deliberation needs to be sustained. Here we only have eight emails exchanged among the nine counselors, not even all counselors engaged in this exchange via email. There was a public hearing, but it seems that the public hearing took place after the decision had been made by council. The end of the email chain seems to suggest that counselors had agreed to speak with one voice and voted unanimously following the public hearing. What is there any evidence that there were public discussions between the counselors at various points of time? There's also an indication that four counselors discussed this approval well on a run. However, that wouldn't amount to... But does that preclude other discussions? So you've got a couple of examples of information that was leaked in some fashion. The email exchange and this reference to people discussing it on the one. Does that mean that the counselors never discussed it amongst themselves on any other occasion? We don't have any evidence that they did or that they did not. We can only base... Who had them? Does Ms. Valley have some obligation to disclose that? Whether there were other discussions? In this case, there was no other discussions disclosed. And so the basis that we have for whether there was any other deliberation is merely the emails, the reference to the run, and the public hearing, which didn't amount to any considerable debate or deliberation. As we know, concerns raised at the public hearing fell on deaf ears. So there doesn't seem to be much true debate or deliberation that took place at the public hearing. You used that turn of phrase fell on deaf ears in your fact, too. And is it not the case that these were just arguments that vote ultimately accepted? I mean, the ears were wide open. Well, the indication suggested by fell on deaf ears was that counsel wasn't listening to these concerns that were raised. The last email in the email chain from Councillor Jean indicates, I think it's important counsel speak with one voice whenever we can, suggesting that after the email exchange, they had concluded their deliberation and their discussion, and that once the public hearing took place, there was no true debate or deliberation. Some concerns were raised, but they weren't heard by the municipal council. They fell on ears that were not listening to those concerns. That doesn't preclude a significant internal debate amongst the elsewhere, so what that tells me is that when you're finished on an internal debate, let's try to be consistent in expressing opinions of the world that are answered to the world at large, which is not a very unusual scenario for lots of organizations. Have your internal discussions, your disagreements, your debates amongst yourselves, but once we come to a decision, let's respect the decision as a whole and not from the undermind. Absolutely, so it seems that after the email exchange, they had come to that conclusion, but we don't have evidence of sustained debate leading up to that. We have the emails, and while there may have been some other discussions that took place, that is not on the evidentiary record here before us. How would you define sustained debate because depending on the issue and the chance for people to reflect themselves and then discuss them amongst themselves? I'm not entirely sure what that means and what low-water market is for. It's helpful to think of this on a spectrum. If we think about debates that we see that take place in the House of Commons where they spend years debating an issue before the legislation is passed, it's studied in committee, this is more sustained debate. A few emails bounce back and forth between counselors where not every counselor is participating would not be an illustration of sustained debate. That would be much lower on the spectrum of deliberation. Now, in the interest of time, I would like to briefly conclude on this factor and then move on to some other arguments. The decision was also not brought in its application. This was relevant to one development agreement which didn't affect the entire municipality. It was not a prospective decision. It was very immediate and reactionary. And so when considering this process and the nature of this decision, it was not one which is a core policy decision. Now, I'd like to move to the, in the alternative argument that this was an irrational decision made in bad faith, seeing as I am low on time. The municipality of Queensborough had a practice of zoning areas with a one in 20 year flood risk as environmental constraint zone, which restrict development. The municipal council had reliable evidence from the North Rogers report that the Sand Rock Peninsula was at a significant flood risk. The land use bylaw indicates that the purpose of the environmental constraint zone is to restrict land use development in areas identified as having a flood risk. But even without these policies that indicate that areas with a significant flood risk should be zoned so that they restrict development, taking a step back and considering that the municipality had evidence of a flood risk and approved the development in that area demonstrates an irrational decision. Your argument seems to be that it's not proper zoning. Should be zoned, whatever the zoning is that limits the development. And that what the municipality should have done is treat it as if it was a different zoning for purposes of the development. But that's not how the zoning works. The zoning process is often a decision to put that through the category of zoning on the land. You can't undermine that zoning by then imposing restrictions through the development process, can you? Well, given the increased risk of flooding that was presented by the development or the North Rogers report, as I mentioned, this report had been praised within the scientific community. It made very good arguments that it was at a significant flood risk. Even if that didn't meet the one in 20 year flood risk criteria or threshold that would amount to a change in zoning, the fact that the municipal council had information that there was an increased flood risk and yet approved development in that area is an irrational decision. It's irrational to allow development to go ahead without warning the future residents of that area that they have information of that flood risk. So even without those specific policies and guidelines which set out what areas should be zoned in what ways, it's irrational to allow development to go ahead particularly without warning the prospective residents of that flood risk. Can I ask you a question? It's been bugging me, maybe it's slowing me down. How is flood defined in this? The only reason I ask is because the event that washed away the houses strikes me as perhaps something much more catastrophic and contemplated in flood risk studies. So I'm having a hard time determining how it is that the new valley could be reliable for what happened versus all of this zoning. Well, previous hurricanes that had affected the Sand Rock Peninsula had creeped up and impacted, touched the docks of those houses. So there was already evidence that the sea level was rising in those areas when hurricanes were coming. And so when North Rogers presented the report of an even higher flood risk, they knew it was greater than what had previously been predicted within that area. And so while they had experienced high water levels creeping up on the edges of the peninsula, this was, they were presenting a greater risk than what they had already seen. Now, in the interest of time, I'll move to conclude, seeing as I'm almost out of time. In conclusion, the decision by the municipal council of Queensborough to approve the development without issuing a warning of the flood risk to prospective residents was not a core policy decision. Characterizing this decision as one of core policy is inconsistent with the factors set out by the Supreme Court Nelson and contrary to the purpose of the doctrine of core policy immunity, which is to be used only where required for the separation of powers. If this court deems the decision to be one of core policy, it should still not be shielded from liability as it was an irrational decision made in bad faith. Barring any further questions from the bench, these are the appellant submissions on issue one. I think we're asked the questions as we went. So thank you very much for your submissions. Good evening, Chief Justice Wood, Justice Scott, Justice Smith. My name is Essie Mahena, and I am appearing today on behalf of the class members represented by Ms. Ira Jane Abdullah. As my co-counsel introduced, I will be making submissions on the second and third issue on this appeal. That is on the duty of care that the municipality owed to the appellants and their failure to meet the applicable standard of care. This appeal is about the safety of residents in coastal municipalities and the just and fair compensation of Canadians harmed by the carelessness of trusted public authorities. Ms. Abdullah and the other residents of 45 family homes in Seeridge Heights barely escaped with their lives when their homes were swept out to sea. The essence of the municipality's negligence in this case was their failure to warn the residents of Seeridge Heights of the flood risk facing their properties. To begin, at paragraph 84 of the appellants' factum, the second issue in this appeal requires the court to determine whether Queensborough owed the appellants a duty to warn them that their properties in Seeridge Heights were vulnerable to a risk of flooding. The court may make this determination in two ways. The court may either decide that recognizing the facts of the instant case brings it within the previously recognized category of duty to warn of risk of danger cases, or the court may establish a prima facie novel duty. Cooper and Hobart cited a paragraph 30 of the appellants' factum, established that the developing common law creates categories of relationships between parties that give rise to a duty of care and render the ANS analysis redundant. Under the proposed categorical duty to warn cases, municipalities have been held responsible to individuals who purchased land from construction companies, as in this case, for failure to warn or prevent construction, where that public authority knew there were problems with the land. And what case are you referring to? Or cases, I should say, if there's more than one? The case that I am referring to is Grewal in the city of Sandwich. That's at paragraph 84 of the appellants' factum. And the respondents say that's an old case that's never been followed and really isn't good law. So what's your response to that argument? I appreciate the appellants' contention that a 30-year-old case is old. However, I submit to the court that much older cases still remain foundational to the law of negligence in Canada. But wouldn't you think that sometime in the last 30 years, some other judge and some other court might have found that case helpful and relied on it? There's a lot of municipalities making decisions out there and people building houses. You would think that problems would arise from time to time and you would have seen this line of reasonings show up on other cases. Well, this case specifically may not have been followed in other cases. There are various other instances where a duty to warn of risk of danger in the context of municipalities with respect to their duty of care to residents has been acknowledged. For example, Gids and the city of Edmonton or that's the one that comes to mind to me at this moment. But there are other instances where the court has recognized this duty of care that municipalities owe to residents for their purchase from construction companies, a property that is affected by. One of the issues that we always have to think about in the duty of care cases, particularly in areas where there isn't an established category, let's say, is whether there's a concern about the extent of liability, this indeterminate liability. So in terms of who is owed this duty by the municipality, is it every person that ever buys a house in this subdivision, whether it's from the developer or from a subsequent purchaser, in other words, how far down the line, or what about someone that's renting from the owner? Are they all owed this duty or is it a more confined group than that? The issue of indeterminate liability that you've raised, Chief Justice, is central to this issue. And if appellate may be used to undermine a prima facie novel duty that the municipality could owe to the appellants in this case, however, the appellants are advancing a very limited, discreet duty that would not apply as broadly as the concerns that they've raised suggests, such as affecting developers, neighbors, visitors of the land. The duty that the appellants are advancing in the present case is confined and tightly limited to a particular group with respect to specific land for a discrete period of time. That is- What's the period of time? The period of time is determined by the limitations period. So a resident may only bring a case against the municipality for negligence for a period of 10 years. And this was determined in Bows in the city of Edmonton. And that cited at paragraph 101 of the appellants' factum. So the limitation on the group is any person who buys one of these properties, whether from the developer or otherwise, within that 10-year time period? It is limited to the land that is affected by the development agreement approved by the municipality, so sewage heights within the limitations period. Probably no one else is gonna build a house there, I would have thought, after the other ones were all washed into the sea. It is possible that there may not be a rebuilding on the land, however, in the leaked emails that were provided from the municipality. The municipality themselves disclose the fact that they may have to expend piles of money to build flood mitigation infrastructure to protect the development in the area. It remains an ongoing concern. I'll return briefly to discuss the prima facie duty of care by which this court may recognize the duty that the municipality owes to the residents of sewage heights. This duty is predicated on a finding of foreseeable harm to the residents and a relationship of proximity between the municipality and the residents of sewage heights. As the Supreme Court of Canada described in Ryan and the city of Victoria, this is a relatively low threshold. My friend concedes that the risk to the residents of sewage heights resulting from the municipality's failure to warn them was foreseeable. Therefore, all that is required to establish a prima facie duty of care in this case is to find a relationship of proximity between the appellates and the municipality of Queensborough. Generally. And what do you say that relationship is? In the present case, the relationship between the municipality and the appellants is similar to that which is described in Gallowitz and the city of Rebel Stoke, which is cited at paragraph 88 of the appellants factum. And that relationship is one which arises from the municipality's control over the land on which the damage to the respondents has, or to the appellants has occurred and their control over the development agreement giving rise to the, and the fact that they intended those homeowners to occupy the land. If the, I wanna understand what you're saying that this duty to warn is. If the development had taken place, the development agreement approved, construction taken place, units sold. And at that point, the municipality became aware of this report. Would there be any duty to warn at that point? Or is it only because no development has taken place yet? If I'm understanding your question correctly, Chief Justice, and I regret that I may not have heard you completely. But the question is whether, if the report had not been brought to the attention of the municipality, when they approved the development agreement, there would have been no duty to warn. So if it came to light later, after the development is built, that's when they obtained or saw the report, would there be a duty to warn at that point in time? If there is no known risk to the municipality at the time that they choose to act, such as approving the development agreement, then they are not under duty to warn the residents of the land. So it's only because they were approving a development agreement that the duty to warn arises. Simply having knowledge of risk, we know is insufficient to require a public entity or a private entity to owe a duty of care to another individual. In the present case, it was more than simply having that knowledge of risk. It was that despite the knowledge of risk, they chose to act in approving the development agreement and created the very risk to which the respondents were exposed. What do you make of the response argument that there was not a sufficient direct relationship between the municipality and the homeowners and perhaps the development corporation in the middle is where the relationship, if at all, existed? Establishing a relationship of proximity between an individual and a public body is difficult in many cases. It is excluded, but in the present case, the fact that the municipality was solely responsible for approving the development agreement and the fact that they intended homes to be built on that land despite the known risk and they expected the appellants, the residents to occupy those homes, that intention brought them into a relationship of proximity to which they owed a duty of care. Although positive duties in tort law are the exception, rather than the rule, if a hazard is known, then a city is derelict in its duty of care if it fails to warn affected parties. As such, given the proximate relationship between the municipality and the residents, the municipality owed them a positive duty of care to warn them that their properties were vulnerable to flooding. This assertion is further bolstered by the finding in Gibbs, which recognized that there's a relationship of proximity, as we've been discussing, that imposes a positive duty to warn on the city when it is aware of risks that bear upon residents' decisions to purchase property on hazardous land. And how would they meet that duty? How is a version of Justice Smith's question that she asked your co-counsel? Would they take out an ad in the newspaper? Would they, what would they do to satisfy this duty from your perspective? To satisfy the duties in this context, the municipality had several numerous affordable, non-expensive, easily accessible options available to them to pursue, despite the budgetary constraints that my friend proposes. I invite the court to consider the case of House and Patey that is cited at paragraph 105 of the Appellant's Factor. In House and Patey, the judge found that to fulfill the duty to warn in that case, the municipality could post on the homepage of its website a possibility that was also considered by the counselor in the leaked emails. They could take out a town advertisement, as you've suggested, Chief Justice. They could also add it to every building permit. The counselors further proposed that they could add caveats to the permits that they issue. However, my friend points out that that's not an option in Nova Scotia. But this is- And of course, putting anything on the permits wouldn't find its way into the hands of your clients because they weren't building anything. They were buying already constructed units. So all you would be doing would be warning the developer. Right? Yes, you would be warning the developer, but with that information, the developer could pass that warning on subsequently to prospective and actual purchasers of the homes, thereby fulfilling the duty. I want to speak a bit more about the important issue of indeterminate liability. As my friend submits that recognizing Queensborough's duty of care in the instant case would result in such indeterminate liability for municipalities. I'm speaking at paragraph 101 of the Appellants Factor. To be successful in their argument, the respondents must demonstrate that these policy reasons are sufficiently compelling to warrant insulating Queensborough from liability on the facts of the case. That is for the complete destruction of the Appellants 45 homes, resulting from the municipality's failure to fulfill their duty to warn residents of the flood risk to their properties. In support of this point, my friend suggests that upholding Queensborough's duty to the Appellants would open the floodgates as we've also discussed Chief Justice, the developers, neighbors, visitors, and many other groups. But the Appellants submits that those groups extending beyond the purchasers of homes are not contemplated in the duty proposed by the Appellants in this case. The duty that we propose is tightly limited, discreet, and the court is well positioned to prevent this duty from applying in an over-broadway in future cases. We are not advocating for a sweeping reform of tort law, but for a case-by-case analysis that is in line with the court's existing approach to formulating duties of care. At best, the prospective duty. What's the policy reason for drawing this line that you've suggested between the purchasers of the property and all of these other people that might make it indeterminate? So for example, if your named class representative bought the unit that she did, but for whatever reason chose not to live in it because she wasn't gonna move here for a couple of years and she rented it out to someone and that person's possessions were destroyed and washed away. Why is that person not entitled to be compensated by the municipality in the same fashion that your client would be if they lived in it? What's the policy reason why you distinguish that that way? On the basis of the duty of care advanced by the appellants in this case, we are advocating for the responsibility of a municipality that approves the development agreement for the construction of homes in the anticipation of prospective and actual purchasers of the homes. The municipality may not be able to foresee all of the visitors to that land, so they could anticipate that people would visit the land. They may not be able to foresee the rentals. Surely they could foresee that people rent their properties from time to time. That's not a stretch by any stretch, in my mind. Perhaps the relationship would arise then through the tenancy relationship that arises between the purchaser of the home and their responsibility to the tenant. But we are discreetly limiting the present duty of care to individuals affected by the municipality's approval of the development agreement and the risk created therein. So if they purchased the property, never lived in it, or purchased a unit, never lived in it, and then sold it, would those people be entitled to notice? Is that a duty of care to the new purchasers as well? The appellant submits that that would be the case if it arose within the applicable limitations period. Finally, the third issue in this appeal requires the court to determine whether Queensborough's conduct met the applicable standard of care expected of a reasonable municipality in the circumstances. My friend proposes a strict interpretation of the standard of care analysis, focusing on budgetary constraints and the availability of resources. It is important, however, that this framework not be used as a secondary strategy to immunize municipalities from just liability. It is further with noting that the foreseeability of risk conceded by my friends is also an important consideration in determining whether Queensborough's actions were sufficient to meet the requisite threshold for standard of care. In this case, as in the case of Brown, in which the Justice Corrie of the Supreme Court of Canada commented that a warning would have cost very little, the appellant's proposed that this is the case for Queensborough as well. We have discussed various strategies by which the municipality could have warned the public. These strategies are easy, cost effective, and do not bear on the budgetary constraints raised by the municipality. In particular, to highlight the budgetary, the contrasting position on budgetary implications associated with this warning, we want to draw the court's attention to counselor Sawyer's comments that if they fail to warn residents of Searidge Heights, that they will have to spend piles of money on flood mitigation strategies. The budgetary comparison of flood mitigation strategies versus posting on the front page of their website is incomparable. They would have been better served to uphold the standard of care for which they were responsible. In summary, Queensborough's decision to approve the development agreement without issuing a warning to prospective residents should not be shielded from liability. As demonstrated by my co-counsel's discussion of the Nelson Factors, it was not a poor policy decision. And even if it was a poor policy decision, it nevertheless does not attract immunity as it was an irrational decision made in bad faith. There are various ways by which this court may find that the municipality owed the residents a duty of care and failed to uphold the requisite standard of care of a reasonable municipality under the circumstances. And as such, fairness in this case demands that the appeal be allowed with costs and that damages be awarded to the appellants in compensation for their losses. Barring any further questions from this honorable bench, these are the appellant submissions. All right, thank you very much. All right, we will now turn to the respondents to answer all of those questions posed by the appellants. Thank you, Chief Justice Wood, Justice Smith, Justice Scott, good evening. My name is Harper Metler and along with my colleague Amelia Heaton, I represent the respondent in this matter, the municipality of Queensborough. This appeal requires this court to consider the justified and measured liability limits that have been carefully crafted by Canadian common law. Specifically, this court must consider this in two ways. First, it must consider this within the context of the doctrine of core policy immunity and the extent to which government officials liability can be limited. And second, it must consider this within the context of the relationship between municipal government officials, prospective home buyers, and whether that relationship is close enough to warrant imposing a positive, private duty to act on the municipality. I'm sorry, I'm having a little trouble hearing you sometimes, Mr. Metler, if you could... Sorry, is this at all better? Yes, that's much better, thank you. Sorry about that, Justice. There are three issues on this appeal. The first issue asks whether the decision to approve the development agreement without issuing a warning to prospective home buyers was a policy decision and as such immune from liability. Our position here is straightforward. The decision to approve the development agreement without issuing a warning boasts all of the hallmarks of a core policy decision and the appellant's action should be dismissed on that basis. The second and third issues relate to whether a duty of care was owed to the appellant class by the municipality and if so, whether that duty was breached. Our position here is also simple, or sorry, also straightforward. Municipal counsel by virtue of their relationship with the appellant class members did not owe them a positive duty of care and even if they did, they met the standard that was expected from them at all material times. My colleague Ms. Eaton will address the second and third issues. Today in my submissions, I will discuss the first issue. I intend to focus my submissions today primarily on two points. First, the analysis which came out of the Supreme Court of Canada's decision in Nelson and how that applies here. And second, I will address the allegations of bad faith and irrational decision-making on the part of municipal counsel. And I apologize, I keep adjusting the microphone but am I still, are you able to hear me, justices? Yeah. Okay, thank you. Our first submission again, relating to that first point, begins at paragraph 10 of the Respondents Factor. When the municipality was faced with the development proposal, they had three options. They could either first, approve the development agreement, second, decline to approve the development agreement, or third, approve the development agreement and issue a warning. What counsel decided to do in this case is approve the development agreement without issuing a warning. That is the decision which this first issue concerns. This was not about a routine approval of any development agreement. It was about the approval of a development agreement without issuing that warning in light of the Northrop Rogers report. This was not a decision for which there was any statutory or procedural guidance upon which the council could rely. This was not something that they had ever had to do before. And since the Supreme Court of Canada's decision in just. So you indicate no statutory guidance but I wanna make sure I understand your position or your interpretation of the Municipal Government Act. When an applicant for a development agreement is unsuccessful, they have an appeal remedy to the utility and review board, correct? I believe so. Okay. My question and if it's not something you addressed or considered in your factum, then that's fine, but if the municipality were to do as the appellants have suggested and approve the agreement with this warning, is the fact that this warning was added into the approval something that could be taken to the utility and review board? Honestly, I'm not sure, Chief Justice. It seems to me that they really are separate issues. There's the approval of the agreement but there's a standalone question as to whether there is an obligation to warn as opposed to some sort of conditional approval because there's nothing in the Municipal Government Act that seems to suggest that the utility and review board would be the place to go to weigh the policy issues about whether there was a duty to warn or not. Yes, we do see that it's a separate issue. It wasn't just any, like the decision at issue here isn't just the approval of the development agreement, it's the approval of the development agreement and not issue a warning in that specific case. I'm struggling. Are you saying that the core immunity arises because of the fact that a warning either was or wasn't given or was the warning the manner by which a core decision and then core policy immunity would sort of play out? I think we're looking at it in this case as sort of the entire context of the decision that Council made was to approve the development agreement without issuing a warning as one of those three options that I mentioned that they had. The issue here isn't whether the development agreement should have been approved or not, it's whether it should have been approved and a warning issued alongside it. So Alan's just trying to figure out is are we talking about whether it, to me, a question of the decision on the approval seems to be a question of whether it's whether it enjoys core policy immunity and then you dig down and say, well, whether there was or was not a warning is sort of the manner by which that decision that would enjoy immunity was sort of performed. Am I missing that sort of step analysis? Am I wrong? We're taking the entire decision to be the impugned decision of Council is both to approve the development agreement without issuing a warning, not to split it in terms of did they approve it and then a separate decision in terms of not issuing a warning. It's the entire context that we're concerned with in this issue. In Nelson, the Supreme Court of Canada clarifies the test that courts should be using when determining a decision or whether a decision is a core policy decision or an operational decision. From Nelson, we get two things. We get a non-exhaustive list of four factors which courts must consider and we also get an affirmation of the underlying rationale of the application of those four factors, specifically being a concern for the separation of powers. While the respondent submits that all four Nelson factors weigh in favor of the decision being one of core policy, I propose today only to focus on two of those factors, specifically the third factor being the nature and extent of budgetary decisions and the fourth factor being the extent to which the decision relied on objective criteria. Our reason for focusing on just those two factors today is because it is our position that those two factors cut to the core of the role of municipalities in their exercise of the core institutional functions of the executive and legislative branches. Discussion of the third factor begins at paragraph 26 of the respondent's factor. The third Nelson factor again focuses on the nature and extent of budgetary decisions and budgetary considerations, sorry. Here, the Supreme Court of Canada again creates a spectrum. Budgetary decisions can go either way. On one end, there are decisions relating to budgetary allocations to departments or agencies. Those would be more likely to be considered core policy decisions. On the other end, there are decisions which can be characterized as individual budgetary decisions by individual employees. Those are more likely to be considered operational decisions and not attract core policy immunity. It is rare that a decision will fall squarely into one of those two camps. The municipality's decision in this case, we would submit, is one of those cases where it doesn't fall squarely into one of those two camps, but where we have a spectrum, it is our submission that this decision falls closer to the budgetary, the pure budgetary decision which would attract core policy immunity. The reason for that is because this was a decision that flowed directly from an earlier budgetary decision that council made, specifically to defer a review of the MPS and specifically the Northrop Rogers report until the 2023 municipal planning strategy review. In 2020, municipal council received an unsolicited report from the Northrop Rogers Environmental Group. This was two years after they had already done a municipal planning strategy review and it was three years before the next municipal planning strategy review was scheduled to take place. The report suggested a higher risk of flooding in the area than was previously accepted in the development first report which was relied upon by a municipal council, but it was also a report that used a different method than the development first report and there's nothing on the record that suggests any similar report was relied on by council in the past using a similar methodology. In the council memorandum, it was clear that this report raised concerns for municipal planning staff in municipal council and that on its face it could not be accepted as fact by virtue of simply having been received for informational purposes by council. But what is also clear in that memorandum is that a review of the municipal planning strategy is an expensive and labor intensive process that involves extensive public consultation. Because of that, council was not in the financial position to review the North Rogers report in 2020 when it was received. They made the decision to defer the review of that report until the context of the next municipal planning strategy review set to be in 2023. The reason that this earlier decision matters is because it is directly related to the decision to approve without issuing a warrant. It was at this point that the report had only been received for informational purposes. Municipal Planning Council for municipal planning staff, sorry, did not have the opportunity to review the findings of the report, to assess its credibility, to assess its accuracy when compared to the development first report. And they had decided that it was not within the municipal budget to allocate additional resources to the municipal planning department in order to have its staff review the report. So I guess what you're saying is once that initial, you called it the initial decision in 2020 was made, then no report with whatever dire warnings might be in it would justify additional expense. Sorry. The budgetary issue that you raised would be there. Sorry, I missed the first part of your question, Justice. All right, so you, I thought you said the first, it flows from the first decision in 2020. And then there's the Northrop report. I'm sorry, the Northrop report is in 2020, two years after having reviewed and three years before the next review. So my question was, or I guess the question was comment, was you're saying that no matter what report had been received, no matter what conclusions it might have reached, no matter how dire its warnings may have been or its conclusions may have been, that's a dead stop because the budget, it was between budgets basically. Yes, Justice. So when they decided that they weren't able to review the Northrop Rogers report, that led to the decision not to make the warning of the flood risk because they weren't able to substantiate that that flood risk was even higher than the flood risk that they had based the approval of the proposal on. So if another report does come and Council is not able to direct their staff to study it to a point that they're comfortable with the certainty of the report such that maybe they feel they need to issue a warning. If they don't issue a warning because they weren't able to study it, we would submit that because it flows from that earlier budgetary decision, for this factor specifically in Nelson, it falls closer to being a pure budgetary decision. Although Council, in fairness, there were no budgetary implications on the municipality to issue a warning. The budgetary implication would be if they decided they needed to do a more detailed assessment of the information in the report, that might engage some expense. But to say to someone, look, we've got this report, we haven't vetted it, but it is something that you should be aware of as to inform yourself before you make a purchase decision. That wouldn't involve any cost to the municipality at all. So we're not saying that that decision itself was a budgetary decision, but when we look at this factor in terms of a spectrum, and if we consider the fact that Council decided not to issue the warning, and our position is primarily that was because they were not able to substantiate that, the warning that the appellants would submit they had to make. But they weren't able to substantiate it because they didn't want to spend any money to substantiate it. They didn't have it within the municipal budget to study that report. Yeah, they didn't have it in the budget to study that report. That was a decision that they had made. And because of that, there was uncertainty in the report, and that was one of the factors that they considered in making that decision. Why should we be so concerned about being between budgets when it comes to that kind of thing and warning prospective developers or purchasers? I mean, what good comes of sitting back and saying, well, we're between budgets. We don't have the money for this too bad, so sad. I mean, and the municipality is responsible for executing their budget in a way that is practical. And if they don't have the funds to direct municipal planning staff to study an unsolicited report when they've already studied another report which has come from a company that's been reliable in the past. And then they, you know, if they have to study every report that comes to them unsolicited, if that's a requirement on council, that that's a massive drain on the municipal budget. Isn't the warning there's an intermediary though between budgets? It takes little cost to warn and you sit back and say, well, we may not ever have a budget with respect to it, but nobody's suggesting that it was entirely invalid. I think the decision not to warn is based on the budgetary decision, but the second part of this submission is on the subjective or the lack of objective criteria that came into this decision. If I can move there now, hopefully that also answers that question. It was clear that there was no objective criteria that council had in making this decision. They didn't have a checklist that they could say, these are the situations in which we need to issue a warning when we're developing or approving a development agreement. This fourth factor in Nelson, in this case ways in favor of it being one of core policy. One of the concerns that they had was that they didn't have the substantiated conclusion of that report. And so if they issue a warning based on something that they're not even certain is a concern, naturally people who view that report, regardless of whether it has a caveat that council hasn't reviewed it, they're not able to substantiate the conclusion that does carry weight. There's an institutional endorsement that comes with municipal government saying, here's a potential flood risk from a report that we have not been able to study. I think most people would see a report like that and their conclusion would be there is a higher flood risk whether or not there actually is a higher flood risk. I think that was one of them. And what would be the implications of that? I mean, here specifically council is concerned with and development that would bring economic stability to the municipality. And if they issue this warning that's unsubstantiated that effectively says, we don't actually know if this development carries a higher flood risk, then I think that goes counter to that initial goal of approving that development in the first place. And puts the development itself at risk as to whether it would be successful because presumably it would discourage people from buying units. Exactly. Is that the thinking? Yes. Okay. Councilors in the emails appear to discuss the importance of maintaining a consistent standard of evidence-based decision-making. And that's effectively a large part of our submissions today. They weren't able to substantiate the report. And because of that, they viewed that issuing a warning could be potentially devastating to a project that they viewed as having significant social value to the municipality. And if I can briefly address my second submission now, this idea of bad faith and irrational decision-making. A key qualifier in the doctrine of core policy immunity is that the decision must be one which is neither irrational or made in bad faith. Decision makers cannot shield their decisions with a doctrine of core policy immunity. In the rare cases where those decisions are made in bad faith or are irrational. Once a decision can be showed to be a core policy decision, it is open to attack on those bases. But we submit here that the appellant has not met the burden of showing that this decision rises to the level of one of those rare instances. When viewed in the context of the interests that municipal council had when they made that decision, it becomes clear that it was not an irrational decision and that it was not a decision made in bad faith. They had clear reasons for making that decision, specifically a concern that a warning about a flood risk which was not substantiated could have negative impacts simultaneously on something that they're trying to support specifically in this case. What about that email chain that the appellants rely on that has some of those intemperate sort of comments made by individual counselors? Does that assist them in establishing that it was either bad faith or irrational the decision making? No, because in those emails, I think it's clear that council has turned their mind to the various competing interests at stake, specifically the economic benefits of approving and having the development in the municipality, specifically the prospect of potential litigation from the Kildonan Development Company. Those are all, that's all clear evidence that council had turned their mind to those issues. I think bad faith would be if council had never turned their issue to those public interest considerations and then made the decision and was unable to back it up with any reason. All right, well, and I realize you've got the zero in front of you there, but when you answered Justice Wood's question, how about the email from Mr. Wood, which says, no relative, I'm sure. I'm with Rick and Dave, these North Rogers guys sound like a bunch of quacks. I'm not going to go into risk my relationship. My relationship with the leads at Kildonan over this lefty granola take on global warning. And then he signs off, check out this link if you want to learn the truth in bold and in caps about COVID. So is that a considered approach? Justice Smith, it's unfortunate that councilor Wood used the language that he used in that email. I'm sorry, I can't hear you again. Sorry, it is unfortunate that councilor Wood used that language in his email. Well, it's not just the language, it's he's saying he's got a relationship with the leads at Kildonan. And had he been the only councilor who made this decision, I think there might be concern there. But when we look at council altogether as the decision maker, there's no evidence that it was solely based on councilor Wood's relationship. I do appreciate that I am out of time, but subject to any further questions, those are my submissions today. Thank you. All right, thank you. Thank you very much. Chief Justice Wood, I hate to ask this in such a hot room, but would it be possible to turn off the fan? I was having a little trouble hearing you. Yeah, as far as I'm concerned, it's not blowing at me. It's not helping out up here. Okay. Chief Justice Wood, Justice Smith and Justice Scott. My name is Amelia Eaton and I'm here on behalf of the respondent on the second two issues in this appeal, which relate to the duty of care and standard of care respectively. The respondent's position is that the municipality's decision was immunized under the doctrine of core policy immunity. However, if this honorable court disagrees, the municipality was nevertheless not liable because it did not owe a duty of care to the appellants. In any case, it discharged the standard of care and thus the appellant's negligence claim must fail. This case is about justified and measured limits to the liability of public authorities. These limits are essential to Canada's constitutional division of powers as my colleague, Mr. Metler has spoken to. And these limits necessarily flow from the principles of justice, fairness, and predictability that animate the novel duty analysis. To impose a duty of care on the municipality of Queensborough in these circumstances, would be to stretch the meaning of proximity beyond its doctrinal and logical limits. As I think it's clear from the questions that this bench asked to my friend, the real controversy here is at the duty of care stage and the subject to any questions about the standard of care, the respondent proposes to focus our submissions today on the duty of care and we rely on the strength of our factum on the third issue of standard. Likewise, as our factum sets out, the respondent submit that this is not a situation that falls into a previously recognized duty of care. As my friends suggested, this previously recognized duty of care is attributed to the decision of grill and sandwich, which is more than 30 years old and it isn't just the age of this case, but in fact that in 2021, the same court, the British Columbia Court of Appeal, held in a case called held and suchelt that no duty of care was owed by the municipality to builders on a land to warn them of geotechnical risks. Thus the same court without referencing grill overturned that decision and it's questionable whether grill can be applied in this case for other reasons as set out in paragraph 58 and 59 of the respondent's factum. Thus the respondent proposes to move into the novel duty of care analysis set out under the Ann's Cooper test. This analysis can be found at paragraph 60 to 74 of the respondent's factum. At the first stage of the Ann's Cooper test, the first question is whether the harm was reasonably foreseeable. In this case, the respondent concedes that it was reasonably foreseeable that there was a possibility of harm to the appellants due to a flood risk. At this stage, the issue of reasonable foreseeability is concerned with mere possibilities and not probabilities. And thus the fact that they had a conversation about potentially warning is sufficient to say that reasonable foreseeable foreseeability was made out and we do not dispute that. Where this proposed duty fails is on the issue of proximity. The concept of proximity is essential to the incremental development of duties of care as set out in Cooper and Hobart. This gatekeeping function is particularly important in this case because of the municipality's role as a public authority. As Chief Justice Wood, as you pointed out, the sole reason why the appellants are asserting that the municipality owed a duty is because of its authority over planning and development because of its public authority and public duties. Municipal decisions on planning and development have far reaching consequences to the public. And this can be seen in the Municipal Government Act which requires that the Municipal Council hold a public meeting and that counselors who wish to vote on the development agreement attend this public meeting in order to vote. And this is clear from the record itself from the February 20th, 2020 public meeting that took place and which considered the Sea Ridge Heights Development Proposal where citizens talked about the impact on their favorite hiking routes and their vision for how the municipality could better plan developments in the area. As the statute and record demonstrate, the overarching interest in this decision is the public interest. So foreseeable harm in this context is not enough as our friends have agreed. A municipality would be incapable of making any decision operational or otherwise if it owed a civil duty to any who was foreseeably harmed by that decision. Thus, there must be something more that connects the municipality with any potential class members who are said to be owed a duty apart from this broad public authority, over planning and development. Is the question of proximity a factual one in each case? The question of proximity, it's a question of mixed fact and law. It requires that the appropriate considerations, which have been set out to be the interests, reliance, representations, and any other interests involved be considered, but it does require a factual application to each case. However, it's important that it not be too circumscribed to each case because as Cooper sets out, analogous duties are considered. So once we find a duty in this case, a duty will be imposed on all municipalities to all future prospective home buyers. And that's something the court ought to be wary of at the proximity stage. You heard the appellant's argument as to where the proximity line should be drawn and why it should be drawn there. What's your response to that? Our response is that it doesn't provide a principled basis on which courts to draw the line, can draw the line between who is proximate to the municipality and who is not. We haven't heard a reason why developers, for example, are not more proximate to the municipality than the people who eventually buy their homes given that they're engaging directly with the municipality when they submit a development agreement for approval. They're the ones who are attending the public hearing. They're the ones who are affected by the property values of any warning if it were to be issued. And that shows that not only are they more proximate, there's a potentially boundless group of people who are impacted. As you pointed out, Chief Justice, what tenants or other visitors who are on the land, their belongings or bodily person could be impacted by any flooding. So to the extent that we're imposing a duty based on the fact that the municipality had authority over planning and development and that it had some knowledge of the respondents would submit unsubstantiated risk, those two factors alone could ground a number of duties and would expose the municipality to indeterminate liability. So that would meet my response that there is no line that we have drawn so far. What is required for the municipality to have a proximate relationship is not just that its decisions impact those who the proposed duty is owed to, because of course this would be far too large a group. Rather, it must assume responsibility for the interests of the proposed group apart from and before the collective interests of the public interest. And this is found at paragraph 63 of the respondents' factum. Here. Sorry to interrupt you, would you agree that they perhaps had a proximity to the developers? Well, that isn't the issue before the court. To the extent that they have a proximate relationship with the developers because they dealt directly with the developers, that would likely be a duty that would be negated for policy considerations in any case. And so it's not necessary to consider at this stage whether it's a proximate relationship. But for the purposes of answering the question, yes, the respondent submits that likely there could be proximity between the developers and the municipality in certain narrow circumstances, but a civil law duty is unlikely to be owed. This is a tort case, right? Certainly. And tort law is all about a portion of risk between parties. And so you have a scenario where the municipality has access to information that your average home purchaser wouldn't have. They don't get sent engineering reports by engineers just to take a look at. And realistically, purchasers who are buying a home are not going to retain an engineer to study floodplains and patterns and the like. So this is information that your average purchaser would not normally have access to. So from a policy point of view, why should we find that it's OK for the municipality to have that information kept back such that the risk, the entire risk associated with this flooding is borne by the homeowner? Justice Chief Justice Wood, my answer to that question would be twofold. First, to keep in line with previous jurisprudence and with an eye to indeterminate liability. And secondly, as a matter of fact on the record, looking at the actual representations and reliance that are at issue. So dealing with the first matter. But that's the standard of care, isn't it? The representation and some reliance? Well, no, the content you were suggesting that the unreliability of the information, I guess, was what you were alluding to. Apologies, Chief Justice Wood. I was not alluding to the unreliability of the information. Rather, I was alluding to the fact that it wasn't reasonable for the homeowners in this case to rely on the municipality as purporting to be endorsing or representing a certain standard of risk as to the flood. So this can be seen contrasting the facts of this case or the proposed duty in this case against inspections, for example. When an inspector, and by extension of municipality, conducts an inspection and issues a permit, it is undertaken to protect the specific interest of those who are relying on the inspection. It is physically carrying out that inspection according to standards and prescribed codes which are widely available and are predetermined. So someone relying on the inspection knows what the municipality has undertaken to do for them. They've know what needs to be checked against what standard it needs to be checked. And if the municipality says it was checked against that standard, they know they can rely on that. In contrast in this case, nothing in the Municipal Government Act, the land use bylaw or the municipal planning strategy gives an indication that the municipality is going to be undergoing reviews of the flood risk of particular lots of land in the intervening years between their five-year review of the municipal planning strategy and that when they approve development agreements, they are giving it a stamp of this is exactly the flood risk. So they haven't undertaken to do that and it's clear why because they simply do not have the budget or institutional capacity to do that in every case. When they approve development agreements, as my colleague has spoken to, they do so because they think it's in the public interest. They're saying we think this development is good for the community. We've considered it and we think residents and constituents would benefit from it. They are not saying this land will not be flooded or this is the risk of flooding or the houses built on this land will have this risk every year. That's not something they can do nor is it something that's set out for them as a statutory responsibility or responsibility they've undertaken in their own policies. So that would be the first point about reliance and representations and when it comes to the previously established jurisprudence, Chief Justice Wood, I would point you to paragraph 57 of the respondents' factum where we quote from one of the cases cited by the appellants for the idea that there is a duty to warn whenever one has information of a potential risk. And this is from Riftow, which was a manufacturer's liability case. It says liability for failure to warn is based not merely on a knowledge imbalance. If that were so, every person with knowledge would be under a duty to warn. It is based primarily on the manufacturer or supply of goods intended for the use of others and the reliance that consumers reasonably place on the manufacturer and supplier. The issue is there are so many groups in society that have special knowledge of certain risks to others. What is required is not just this knowledge imbalance, it's something more, it's reliance, it's profit for manufacturers, it's a close relationship that's created through a manufacturer sending their good to a consumer. In this case, as I've submitted, the reliance was not reasonable, the relationship was not otherwise proximate, and the municipality is not creating a risk for private profit. It's approving development agreements for the good of the community. Is it approvingly the agreement, sort of an implicit endorsement that the land is good for its use? It is an implicit endorsement in so far as it is saying this land is appropriately zoned for this use. And under the zoning bylaws, it was appropriately zoned, given that the risk known to them at the time was one in 100 years, so a 1% risk of flooding every year. And the land use bylaw sets out that our one zones are capable of being developed for residential housing, and based on the expert reports that they had at the time from development first, the municipality reasonably believed that it was in the appropriately zoned category, which can be seen as my colleague spoke to you in their discussion that they are going to wait until the next municipal planning strategy review that was scheduled for 2023 to reconsider the report. So it isn't an endorsement that the municipality has undergone a full scale and novel investigation about the risks of the land. It's an endorsement in the sense that it says, on paper, this land is appropriately zoned for the development that's proposed, and in this case, it was. Although the report calls that into question as to whether it was appropriately zoned. If the report is accepted for what it says, then it probably isn't properly zoned. Certainly, Chief Justice, but if the report is accepted for what it says, then the land is likely not in the proper category. However, it should be highlighted that this report was from a group the city had never worked with. It was employing novel methods, which were speculative as they were using journal articles about the projected risks associated with the Sand Rock Peninsula, associated with increased ocean levels and flooding in the Sand Rock Peninsula. So there were good reasons for the municipality to require an investigation be done into the report. It's also worth noting that the report did not necessarily predict what happened in this case, as Justice Scott pointed out, we haven't defined flooding in either report. Both reports seem to discuss a flood risk of, I believe, 2.7, which can be found at page five of the record, the bottom paragraph, 2.8, my apologies. They had considered that a certain flood risk of 2.8 meters could be consequential for the peninsula. What we saw with Hurricane Rebecca was a flooding of 3.6 meters that was unprecedented in the peninsula. We do not have any information that either reports predicted this. And so to the extent that the North Rogers report suggested that there was an increased risk and this warranted further study, which the municipality did, that's a different question from whether the North Rogers report was objectively more correct than the development first report in relation to Hurricane Rebecca specifically, which is the event that the appellants complain of. One more question, and then I'll let you get closer to your conclusion. You gave us the quote from Rivto and made the submission that that was a commercial venture where someone was manufacturing a product where they were gonna make money and they let a risky product go into the market. And that's not what we're dealing with here because the municipality is sort of acting in the public interest or worse to that effect. But wasn't the municipality standing to make significant tax revenue from this? And so by allowing the development to go ahead, there was the municipal equivalent of a significant profit to be made by allowing it to go ahead. So wasn't the analogy with the Rivto situation maybe a little more apt than you were suggesting? Chief Justice Wood, the analogy with the Rivto situation, the respondent would submit still fails because while there is significant tax revenue, as my colleagues spoken to, that tax revenue is spent on public programs in the public interest. The municipality is not generating a profit. It is collecting taxes to spend on the residents, which include the residents who are going to live in that development. It's necessary that they tax residents of a luxury development who will be using municipal services. So when they were considering the potential profit that this development would bring in, it was the potential of that profit to further the interests of the community as a whole. And it's this public interest that shouldn't be fettered by the imposition of civil liability. Justices, I see that my time has elapsed, may have 30 seconds to briefly conclude. Certainly. Thank you. To find in our favor, this court need only uphold the reasonable and well-developed common law limits to municipal liability. The municipality of Queensborough's decision to approve the C. Ridge Heights Development Agreement without issuing a warning was a core policy decision and thus is immune from liability. If this honorable court disagrees, it was nonetheless not liable because it did not owe a duty of care. In any case, it met the applicable standard of care. The jurisprudence, policy concerns, and the very facts of this case weren't dismissing this appeal. We ask that this honorable court do so. Thank you. Thank you very much. All right, Appellants Council, do you want to exercise your right of reply? All right, thank you. Thank you very much. Well, thank you to both sets of counsel. So what the panel's going to do is we're going to take a brief adjournment for say 15 minutes or so, and we'll come back and give you our decision such as it is. So I'd ask the court clerk to adjourn the hearing. It's called improv. Council, I would, on behalf of the panel, like to thank all of you for your very, very able arguments and submissions. They were very well done, and you responded very well to our questions. So you're to be congratulated. I heard a round of applause when we left. I didn't think it was for us, so I thought it was very, very well deserved, so well done. I don't know if any of my panel members want to add anything. Like, absolutely fantastic. If anyone wants a job at the Crown, I would do it. Anyone wants to clerk at the Court of Appeal? Just send your application in if you're fruiting. Oh, come visit. I love visitors. So being somewhat competitive, I suspect, you want to know who won and who lost on the merits, of course. The panel members will not be providing detailed reasons. I can assure you of that. But we came to the conclusion that the respondent should be successful on the merits. We felt that the core policy decision argument of the appellant should prevail, but that there wasn't sufficient proximity to extend the duty of care. So respondent's won on that front. In terms of the prizes to be awarded, I'm told that the top two mooters will win the Petillo Prize back in my day. I did the Smith Shield when I was a student. Back in my day, we just said they won the Smith Shield, but it's the Petillo Prize. The second place mooters will be the Leonard Kitts Prize, which is the one that I won when I did the Smith Shield. So even though those that won the Kitts Prize may feel somehow slightly disappointed, it worked out okay for me, so I'm quite happy to have won that prize and put it on my resume over the years. So, without any further ado, I'm going to announce the winners of the Kitts Prize, and that's Essie Machina and Amelia Eaton, which means that the winners of the Petillo Prize are Alita Doyle and Harper Metler. So congratulations to everyone. And I wanna thank our court clerk Ursula, thank you very much. I said, ham it up a little bit and you took me seriously, so I appreciate that. All right, so Ms. Calder, if you would be kind enough to close court, and then we will get a few photographs taken. Yeah.