Dmitruk v. Dauphin (City) et al., (2015) 317 Man.R.(2d) 148 (QB)

JudgeCummings, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateMay 13, 2015
JurisdictionManitoba
Citations(2015), 317 Man.R.(2d) 148 (QB);2015 MBQB 80

Dmitruk v. Dauphin (2015), 317 Man.R.(2d) 148 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.031

Alexander Gregory Dmitruk (plaintiff) v. City of Dauphin, Donald Edward Schnittjer and Carol Gaye Schnittjer (defendants)

(CI 13-05-00741; 2015 MBQB 80)

Indexed As: Dmitruk v. Dauphin (City) et al.

Manitoba Court of Queen's Bench

Dauphin Centre

Cummings, J.

May 13, 2015.

Summary:

The plaintiff asserted that his next door neighbours were operating a primary, rather than home-based, business in a residential neighbourhood, contrary to zoning and business bylaws. The plaintiff's action alleged that the defendant city's neglect or refusal to enforce those bylaws had caused the plaintiff and his family a loss of use, enjoyment and comfort in his property. The city moved to strike the statement of claim as against it for disclosing no reasonable cause of action. In response, the plaintiff moved to amend his statement of claim to include allegations that the city had undertaken or promised to "monitor" the neighbours' property and that the plaintiff had relied on that undertaking to his detriment.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at (2014), 309 Man.R.(2d) 223, denied the city's motion to strike the claim and granted the plaintiff's motion to amend the statement of claim. The city appealed.

The Manitoba Court of Queen's Bench allowed the appeal, granting the city's motion to strike the claim.

Estoppel - Topic 1005

Estoppel in pais (by conduct) - General - Against municipalities - The plaintiff asserted that his next door neighbours were operating a primary, rather than home-based, business in a residential neighbourhood, contrary to zoning and business bylaws - The plaintiff's action alleged that the city had undertaken or promised to "monitor" the neighbours' property, that the plaintiff had relied on that undertaking to his detriment and that the city was, therefore, estopped from denying its obligation to monitor - The city moved to strike the statement of claim as against it for disclosing no reasonable cause of action - The Manitoba Court of Queen's Bench granted the motion - One of the five components of estoppel was an existing legal relationship between the parties - This legal relationship had to be based on a pre-existing contractual relationship - No such relationship existed between the plaintiff and the city - See paragraphs 41 to 45.

Municipal Law - Topic 1704

Liability of municipality - General and definitions - Bad faith - The plaintiff asserted that his next door neighbours were operating a primary, rather than home-based, business in a residential neighbourhood, contrary to zoning and business bylaws - The plaintiff's action alleged bad faith on the part of the city in failing to enforce the bylaw or have the property re-assessed - The city moved to strike the statement of claim as against it for disclosing no reasonable cause of action - The Manitoba Court of Queen's Bench granted the motion - Bad faith was not independently actionable - See paragraphs 37 to 40.

Municipal Law - Topic 1814

Liability of municipalities - Negligence - Enactment or enforcement of bylaw - The plaintiff asserted that his next door neighbours were operating a primary, rather than home-based, business in a residential neighbourhood, contrary to zoning and business bylaws - The plaintiff's action alleged that the defendant city's neglect or refusal to enforce those bylaws had caused the plaintiff and his family a loss of use, enjoyment and comfort in his property - The city moved to strike the statement of claim as against it for disclosing no reasonable cause of action - The Manitoba Court of Queen's Bench granted the motion - The city was not obliged to take any steps to enforce the zoning bylaw - All of the decisions made by the city were in the nature of policy decisions that were not reviewable by the court - Refusing to enforce the bylaw was a policy decision - See paragraphs 9 to 23.

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - [See Municipal Law - Topic 1814 and Torts - Topic 9155 ].

Municipal Law - Topic 6226

Actions against municipality - Capacity to be sued - Policy decisions - [See Municipal Law - Topic 1814 and Torts - Topic 9155 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - The plaintiff asserted that his next door neighbours were operating a primary, rather than home-based, business in a residential neighbourhood, contrary to zoning and business bylaws - The plaintiff's action alleged that the city had undertaken or promised to "monitor" the neighbours' property and that the plaintiff had relied on that undertaking to his detriment - The city moved to strike the statement of claim as against it for disclosing no reasonable cause of action - The Manitoba Court of Queen's Bench granted the motion - The relationship between the city and the plaintiff did not give rise to a prima facie duty of care - Even if it had, any such duty of care was negated by policy considerations - The city made a policy decision to monitor the property and communicated this to the plaintiff - This did not create a duty owed to the plaintiff - See paragraphs 24 to 36.

Cases Noticed:

Bartmanovich et al. v. Manitoba Crop Insurance Corp. et al. (1995), 103 Man.R.(2d) 89; 1995 CarswellMan 169 (Q.B.), refd to. [para. 6].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General) (1980), 33 N.R. 304; 1980 CarswellNat 633 (S.C.C.), refd to. [para. 7].

Toronto (City) v. Polai, [1970] 1 O.R. 483 (C.A.), refd to. [para. 13].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, dist. [para. 15].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 16].

Sapone v. Clarington (Municipality) et al., [2001] O.T.C. Uned. C98; 2001 CarswellOnt 5905 (Sup. Ct.), refd to. [para. 23].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 26].

St. Brieux (Town) et al. v. Three Lakes No. 400 (Rural Municipality) et al. (2010), 354 Sask.R. 187; 2010 CarswellSask 190 (Q.B.), not folld. [para. 40].

Reclamation Systems Inc. v. Rae, 1996 CanLII 7950 (Ont. Sup. Ct.), refd to. [para. 42].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (3rd Ed.), p. 137 [para. 43].

Counsel:

Scott Abel, for the plaintiff;

Curran McNicol, for the City of Dauphin.

This appeal was heard by Cummings, J., of the Manitoba Court of Queen's Bench, Dauphin Centre, who delivered the following judgment on May 13, 2015.

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