Rausch v. Pickering (City), (2013) 313 O.A.C. 202 (CA)

• Judge: MacFarland, Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 25, 2013
• Jurisdiction: Ontario
• Citations: (2013), 313 O.A.C. 202 (CA);2013 ONCA 740

Rausch v. Pickering (2013), 313 O.A.C. 202 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. DE.009

James Rausch (plaintiff/respondent) v. The Corporation of the City of Pickering (defendant/appellant)

(C56543; 2013 ONCA 740)

Indexed As: Rausch v. Pickering (City)

Ontario Court of Appeal

MacFarland, Watt and Epstein, JJ.A.

December 9, 2013.

Summary:

Rausch raised a herd of wild boars on property that he occupied within the jurisdiction of the City of Pickering. The City, relying on a bylaw that restricted keeping certain types of animals within its limits, forced Rausch to get rid of his herd. Rausch sued the City for damages suffered as a result of the loss of his wild boar business. Initially, his claim was advanced on the basis of trespass, abuse of process and malicious prosecution. Rausch brought a motion to amend his claim to add a claim in negligence.

A Master of the Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 2797, allowed the motion, without explicitly ruling on whether the negligence pleading was a legally tenable cause of action. The City brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 2393, dismissed the motion. The City appealed.

The Ontario Divisional Court, Murray, J., dissenting, dismissed the appeal. See [2012] O.A.C. Uned. 821. The City appealed, with leave. At issue was: (1) whether the appeal should be dismissed as a collateral attack on the Master's order allowing the amendments; (2) did the majority of the Divisional Court err in refusing to strike the impugned paragraphs in the statement of claim by improperly concluding that Rausch's pleading asserted a viable claim in negligence for (i) the breach of a statutory duty; or (ii) the breach of a common law duty; and (3) were the impugned amendments to the statement of claim barred by the Limitations Act, 2002?

The Ontario Court of Appeal dismissed the appeal.

Municipal Law - Topic 1814

Liability of municipalities - Negligence - Enactment or enforcement of bylaw - Rausch raised a herd of wild boars on property that he occupied within the jurisdiction of the City of Pickering - The City, relying on a bylaw that restricted keeping certain types of animals within its limits, forced Rausch to get rid of his herd - Rausch sued the City for damages suffered as a result of the loss of his wild boar business - Initially, his claim was advanced on the basis of trespass, abuse of process and malicious prosecution - A Master allowed Rausch's application to amend his statement of claim to add a claim in negligence - The City brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - A Superior Court judge dismissed the motion - The City appealed - The Divisional Court dismissed the appeal - The City appealed, with leave - The Ontario Court of Appeal held that if a duty of care was recognized, then the standard of care necessary to discharge the duty and whether it has been breached would be determined at trial - Nevertheless, the court briefly addressed the standard of care - See paragraphs 40 and 85 to 90.

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - A Master allowed the plaintiff's application to amend his statement of claim to add a claim in negligence - The defendant brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - A Superior Court judge dismissed the motion - The defendant appealed - The Divisional Court dismissed the appeal - The defendant appealed, with leave - The Ontario Court of Appeal stated that "because this appeal arises out of a Rule 21 motion and is therefore based on a limited motion record, this court should be reluctant to find that policy reasons conclusively negate a duty of care at this early stage" - See paragraph 74.

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - A Master allowed the plaintiff's (Rausch's) application to amend his statement of claim to add a claim in negligence - The defendant (City) brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - A Superior Court judge dismissed the motion - The City appealed - The Divisional Court dismissed the appeal - The City appealed, with leave - The Ontario Court of Appeal held that "the decision to enforce the By-law against Mr. Rausch is operational in nature. It involved a decision to enforce a specific by-law against him: it was not motivated by broader policy concerns. There is therefore no concern that imposing a duty of care in this situation would undermine the City's ability to legislate or set policy." - See paragraph 77.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred (incl. exceptions) - Rausch raised a herd of wild boars on property that he occupied within the jurisdiction of the City of Pickering - The City, relying on a bylaw that restricted keeping certain types of animals within its limits, forced Rausch to get rid of his herd - Rausch sued the City for damages suffered as a result of the loss of his wild boar business - Initially, his claim was advanced on the basis of trespass, abuse of process and malicious prosecution - A Master allowed Rausch's application to amend his statement of claim to add a claim in negligence based on the breach of a statutorily imposed duty of care - The City brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - A Superior Court judge dismissed the motion - The City appealed - The Divisional Court dismissed the appeal - The City appealed, with leave - The Ontario Court of Appeal held that the absence of a specific statutory duty of care imposed by the Farming and Food Production Protection Act meant that a negligence claim based on the breach of a duty explicitly set out in the statute had no chance of success and should not be allowed to proceed to trial - However, the City owed Rausch a common law duty of care - The court stated that there was no issue about whether the negligence claim was added after the expiry of the limitation period - It was - Therefore, the question was whether Rausch's negligence claim based on a common law duty of care advanced a new cause of action or merely an alternative theory of liability - The court held that, in relying on a common law duty of care, Rausch was asserting an alternative theory of liability flowing from the facts as pleaded - Therefore, his claim was not barred by the limitation period - See paragraphs 99 to 103.

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - A Master allowed the plaintiff's (Rausch's) application to amend his statement of claim to add a claim in negligence - The defendant (City) brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - A Superior Court judge dismissed the motion - The City appealed - The Divisional Court dismissed the appeal - The City appealed, with leave - Rausch argued that the rule 21 motion was a collateral attack on the Master's order and should be dismissed - The Ontario Court of Appeal stated that "Mr. Rausch relies on the basic premise that on a motion to amend pleadings under Rule 26, the court is not permitted to allow the proposed amendment unless it asserts a tenable cause of action ... Mr. Rausch therefore submits that the Master, by granting leave to add the claim in negligence, implicitly found that the amendments disclose a valid cause of action. As a result, Mr. Rausch argues that any subsequent challenge to the viability of the negligence claim is barred by the doctrine of res judicata. The City relies on a sentence in the Master's reasons in which he specifically purported to leave the door open to a further legal challenge. For reasons the Master did not explain, near the end of his endorsement the Master said, '[c]ounsel [for the City] indicated that he was contemplating bringing a Rule 21 motion in the event that I permitted any of these amendments. I see no reason why these reasons in any way prevent his taking that step, if he chooses to do so.' In my view, the collateral attack argument is not properly before this court as it was neither raised before nor dealt with by the Divisional Court. I would therefore not give effect to this argument except to make the following comment. In my view, a disposition that allows amendments that raise a cause of action the tenability of which is in dispute and leaves the door open to a subsequent Rule 21 challenge of the amendments is a disposition that is internally contradictory and legally not available." - See paragraphs 30 to 33.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - A Master allowed the plaintiff's (Rausch's) application to amend his statement of claim to add a claim in negligence - The defendant (City) brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - A Superior Court judge dismissed the motion - The City appealed - The Divisional Court dismissed the appeal - The City appealed, with leave - The Ontario Court of Appeal rejected the City's submission that in determining the issues raised, the analysis was restricted to a consideration of whether the amendments, taken in isolation, raised a tenable cause of action - The amendments were part of the amended claim and the legitimacy of the claim or claims they advanced had to be considered in the context of the amended pleading as a whole - See paragraph 35.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Rausch raised a herd of wild boars on property that he occupied within the jurisdiction of the City of Pickering - The City, relying on a bylaw that restricted keeping certain types of animals within its limits, forced Rausch to get rid of his herd - Rausch sued the City for damages suffered as a result of the loss of his wild boar business - Initially, his claim was advanced on the basis of trespass, abuse of process and malicious prosecution - A Master allowed Rausch's application to amend his statement of claim to add a claim in negligence - The City brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - The Ontario Court of Appeal agreed "that the FFPPA [Farming and Food Production Protection Act] does not explicitly impose a duty on the City to do anything relevant to Mr. Rausch's complaint. There is nothing in s. 6(1) of the FFPPA that specifies that a municipality has a duty to take or refrain from taking any action. Under s. 6(2), a municipality 'may' apply to the Board 'for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.' But, the legislation does not require the municipality to make such an application. In fact, the only requirement s. 6 of the FFPPA explicitly imposes on a municipality is found in s. 6(13). It requires municipalities to provide the Board with landowners' addresses to enable the Board to give notice of a hearing. This obligation has no relevance to the negligence alleged against the City. The absence of a specific statutory duty of care imposed by the FFPPA means that a negligence claim based on the breach of a duty explicitly set out in the statute has no chance of success and should not be allowed to proceed to trial. ... However, while not raised in the courts below or on appeal, ... this decision does not foreclose the possibility that there may be an implied statutory duty of care arising out of the statutory scheme." - See paragraphs 42 to 44.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Rausch raised a herd of wild boars on property that he occupied within the jurisdiction of the City of Pickering - The City, relying on a bylaw that restricted keeping certain types of animals within its limits, forced Rausch to get rid of his herd - Rausch sued the City for damages suffered as a result of the loss of his wild boar business - Initially, his claim was advanced on the basis of trespass, abuse of process and malicious prosecution - A Master allowed Rausch's application to amend his statement of claim to add a claim in negligence - The City brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - The Ontario Court of Appeal found that the City owed Rausch a prima facie common law duty of care and that "Rausch's amended pleading contains the factual matrix necessary to support a negligence claim based on a common law duty of care. The statutory framework of the City's jurisdiction, including the Municipal Act and the FFPPA [Farming and Food Production Protection Act], is pleaded. Certain indicia relevant to establishing a relationship of proximity are pleaded. The fact that the by-law enforcement officer took no steps to consider jurisdiction is pleaded. Reliance is pleaded. Causal damages are pleaded. To strike his pleading, one that pleads breach of a duty of care arising out of a statutory framework because it does not explicitly refer to its being a common law duty would be to privilege form over substance. ... [T]his narrow approach is not called for here." - See paragraphs 91 to 98.

Torts - Topic 10

Negligence - Standard of care - General - [See first Torts - Topic 77 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The Ontario Court of Appeal discussed the legal principles regarding the duty of care - The court stated that "The foundation of a claim in negligence is the recognition of a duty of care owed by the defendant to the plaintiff. A duty of care is not a duty to do anything specific: the duty is to take reasonable care to avoid causing foreseeable harm to those with whom one is in a relationship of proximity. An error frequently made is conflating the duty of care with the standard of care. They are discrete concepts. As the Supreme Court of Canada wrote ... 'the question of whether a duty of care exists is a question of the relationship between the parties, not a question of conduct.' The question of what conduct is required to satisfy the duty is a question of the appropriate standard of care. The existence of a duty of care simply means that the defendant is in a relationship of sufficient proximity with the plaintiff that he or she ought to have the plaintiff in mind as a person foreseeably harmed by his or her wrongful actions. It is not a duty to do anything specific; it is a duty to take reasonable care to avoid causing foreseeable harm ... If a duty of care is recognized, then the standard of care necessary to discharge the duty and whether it has been breached will be determined at trial." - See paragraphs 37 to 40.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - Rausch raised a herd of wild boars on property that he occupied within the jurisdiction of the City of Pickering - The City, relying on a bylaw that restricted keeping certain types of animals within its limits, forced Rausch to get rid of his herd - Rausch sued the City for damages suffered as a result of the loss of his wild boar business - Initially, his claim was advanced on the basis of trespass, abuse of process and malicious prosecution - A Master allowed Rausch's application to amend his statement of claim to add a claim in negligence - The City brought a motion under Civil Procedure Rule 21 to strike out the amendments as disclosing no cause of action - The Ontario Court of Appeal concluded that a municipality considering whether to enforce a bylaw that might restrict a farm operation was in a relationship that was close and direct such that a prima facie duty of care should be recognized - See paragraphs 54 to 72 - The court found no policy reasons to negate the duty of care - The court considered, inter alia, that the decision to enforce the bylaw against Rausch was operational in nature and not motivated by broader policy concerns; and the class of defendants and their identity was known, and therefore indeterminate liability did not arise - See paragraphs 73 to 84.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See second Municipal Law - Topic 1818.1 ].

Torts - Topic 78

Negligence - Duty of care - Effect of statutory or policy precautions or safeguards on the scope of the duty of care - [See second Practice - Topic 2230 ].

Cases Noticed:

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 18].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 23].

Pyke et al. v. Tri Gro Enterprises Ltd. et al. (2001), 148 O.A.C. 307; 55 O.R.(3d) 257 (C.A.), leave to appeal denied (2002), 294 N.R. 394 (S.C.C.), refd to. [para. 28].

Teva Canada Ltd. v. Bank of Montreal et al. (2002), 294 O.A.C. 323; 2012 ONCA 486, refd to. [para. 30].

Carom et al. v. Bre-X Minerals Ltd. et al. (1998), 78 O.T.C. 356; 41 O.R.(3d) 780 (Gen. Div.), refd to. [para. 30].

Amato et al. v. Welsh et al. (2013), 305 O.A.C. 155; 2013 ONCA 258, refd to. [para. 34].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 34].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 34].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 34].

Canada v. Irving (J.D.) Ltd. et al., [2000] N.R. Uned. 98 (F.C.A.), refd to. [para. 35].

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241, refd to. [para. 38].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 39].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 45].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 51].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 51].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 53].

River Valley Poultry Farm Ltd. v. Canada (Attorney General) et al. (2009), 248 O.A.C. 222; 95 O.R.(3d) 1; 2009 ONCA 326, refd to. [para. 56].

Attis et al. v. Canada (Minister of Health) et al. (2008), 254 O.A.C. 91; 93 O.R.(3d) 35; 2008 ONCA 660, leave to appeal refused (2009), 396 N.R. 397; 260 O.A.C. 394 (S.C.C.), refd to. [para. 56].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, appld. [para. 57].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 57].

Haskett v. Equifax Canada Inc. et al. - see Haskett v. Trans Union of Canada Inc. et al.

Haskett v. Trans Union of Canada Inc. et al. (2003), 169 O.A.C. 201; 63 O.R.(3d) 577 (C.A.), agreed with [para. 64].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1; 89 B.C.L.R.(2d) 1, refd to. [para. 76].

Holland v. Saskatchewan et al., [2008] 2 S.C.R. 551; 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, dist. [para. 78].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352, refd to. [para. 81].

Boundary Bay Conservation Committee et al. v. Provincial Agricultural Land Commission et al., [2008] B.C.T.C. Uned. 586; 2008 BCSC 946, refd to. [para. 88].

Foley v. Shamess et al., [2008] O.A.C. Uned. 747; 297 D.L.R.(4th) 287; 2008 ONCA 588, refd to. [para. 88].

Butterman v. Richmond (City) et al., [2013] B.C.T.C. Uned. 423; 2013 BCSC 423, refd to. [para. 88].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1990), 40 O.A.C. 161; 74 O.R.(2d) 225 (Div. Ct.), appld. [para. 95].

1309489 Ontario Inc. v. BMO Bank of Montreal et al., [2011] O.T.C. Uned. 5505; 107 O.R.(3d) 384; 2011 ONSC 5505, appld. [para. 95].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Farming and Food Production Protection Act, S.O. 1998, c. 1, sect. 6(1) [para. 13].

Rules of Civil Procedure (Ont.), rule 20, rule 21 [para. 8].

Authors and Works Noticed:

Sappideen, Carolyn, and Vines, Prue, Fleming's The Law of Torts (10th Ed. 2011), pp. 123, 124 [para. 38].

Counsel:

Stuart Zacharias, for the appellant;

Yan David Payne and Andrew D. Pelletier, for the respondent.

This appeal was heard on June 25, 2013, by MacFarland, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. Epstein, J.A., delivered the following decision for the court on December 9, 2013.