On December 9, 2013, the Ontario Court of Appeal upheld the dismissal of the City’s motion to strike out the Plaintiff’s amendments to Statement of Claim alleging negligence based in part on a statutory duty. The decision also addressed the application of the limitation period.

Mr. Rausch raised a herd of wild boars on his property. Pursuant to the Municipal Act, 2001, the City of Pickering enacted a by-law that restricted keeping certain types of animals within City limits and told Mr. Rausch to remove the boars from his property or the City would forcibly remove them. Mr. Rausch removed the boars, after  which the City laid charges against him for breaching   the By-law. The City later withdrew the charges.

Mr. Rausch brought an action for economic loss against the City and later brought a motion arguably outside of the limitation period to add a claim in negligence. Mr. Rausch alleged that the City owed him a duty of care pursuant to section 6 the Farming and Food Production Protection Act, 1998 (the “FFPPA”), which prevents a municipality from restricting a normal farm practice that is part of an agricultural operation. Mr. Rausch also argued that the City breached the common law duty of care by failing to consider whether it had statutory authority to enact the By-law. The Master allowed the amendments, after which the City brought a motion to strike out the amendments as disclosing no cause of action. The motion judge and the Divisional Court upheld the amendments, and the City appealed to the Court of Appeal.

Speaking on behalf of the Court, Justice Epstein agreed that the FFPPA did not explicitly impose a duty of care on the City towards Mr. Rausch, but stated that there may be an implied statutory duty of care. Justice Epstein also stated that even without a statutory duty of care, neither the FFPPA or the Municipal Act precluded recognition of a common law duty of care, and the Municipal Act expressly does not relieve municipalities of liability for torts. Justice Epstein determined that the City had a prima facie duty of care to farmers being investigated for possible violation of a by-law which could restrict their farming operations.

Justice Epstein also considered whether the pleadings were broad enough to support a claim in negligence based on common law duty of care. Justice Epstein held that, although the claim was grounded in breach of a statutory duty, the amendments “contained the factual matrix necessary to support a negligence claim based; on a common law duty of care”. As a result, it was not “plain and obvious” that a negligence claim based on a common law duty of care had no chance of success.

Finally, the City argued that as the amendments were made after expiry of the limitation period, they were statute-barred. However, Justice Epstein stated that a claim based on the breach of a common law duty of care as opposed to a statutory duty was “merely relying on a different legal path to reach the same conclusion,” and noted that the material facts to support the claim were already plead. The new negligence claim based; on a common law duty of care was an alternative theory of liability and not a new cause of action and was therefore not barred by the limitation period. As a result, the amendments were allowed to remain for the purposes of trial.

Author

Kathryn Shani 
KShani@blg.com
416.367.6033

Expertise

Insurance and Tort Liability
Municipal Liability