Canada: The Second Opinion: What The Heck Did The Ontario Court Of Appeal Mean When It Spoke Of An "Implied Statutory Duty Of Care"?

Last Updated: December 16 2013
Article by Anthony M.C. Alexander

Most Read Contributor in Canada, September 2018

In the past decade, the staid law of negligence has undergone a number of interesting developments in Canada, focusing particularly on the threshold question of whether a duty of care is or is not owed by a particular plaintiff to a particular defendant in novel circumstances.

A recent ruling of the Ontario Court of Appeal, Rausch v. The Corporation of the City of Pickering, 2013 ONCA 740, has highlighted an interesting and relatively obscure aspect of this question.

The Rausch ruling turned on a dispute between a farmer and a municipality. The farmer raised wild boars, and the city warned him that his business violated the municipal Exotic Animals By-law. After shutting down his operation, the farmer came to the conclusion that the city had been mistaken, and that his operation had, in fact, been exempted from the By-law by the provincial Farming and Food Production Protection Act (or the FFPPA).

The farmer sought to recover damages reflecting the loss of his boar-raising operation. He sued the city, alleging that it had acted negligently in its interpretation and enforcement of the By-law. A necessary prerequisite for a claim in negligence is, of course, the existence of a duty of care owed by the defendant to the plaintiff. The farmer alleged that the city had owed him such a duty of care as a result of the provisions of the FFPPA.

The Court of Appeal endorsed the ruling of the majority of the Divisional Court, below, and refused to strike out the farmer's negligence claim.

The Court of Appeal agreed that there was nothing in the FFPPA which supported the existence of an "explicit statutory duty of care" owed by the city to the farmer, but found that the FFPPA might give rise to "an implied statutory duty of care":

[44] .....A statutory duty of care may be explicit or implied. I have found that in these circumstances, the legislation imposed no explicit statutory duty on the City. However, while not raised in the courts below or on appeal, in my view this decision does not foreclose the possibility that there may be an implied statutory duty of care arising out of the statutory scheme.

For many readers, the concept of a "statutory duty of care" — and particularly an "implied statutory duty of care" — satisfying a key element of a common law cause of action will appear anomalous. It is therefore regrettable that the Court of Appeal in Rausch provided no substantive or principled explanation of this concept.

The risk of confusion is magnified because the interaction between statutory duties and common law liability is a question that has been rife with uncertainty for decades. Prior to 1983, there was extensive debate as to whether or not there existed a discrete tort of "statutory breach" or "breach of statutory duty." With Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, the Supreme Court ended the debate by confirming that there exists no such nominate tort. However, the Court noted that the specific duties imposed on a party by statute might reasonably inform the substantive content of the common law standard of care expected of that party for purposes of the tort of negligence.

Thus, while the Wheat Pool case confirmed that statutory duties were relevant to common law standards of care, it did not address the application of such statutory duties to common law duties of care.

Over the past decade — in a long series of rulings, commencing with Cooper v. Hobart, 2001 SCC 79 and Edwards v. The Law Society of Upper Canada, 2001 SCC 80 — the Supreme Court of Canada has undertaken a broad-based revisiting of the principles governing duty of care. A number of these cases have considered the impact of statutory regimes on common law negligence claims, particularly vis-a-vis duties of care owed by public authorities. The best description of this interaction — including an acknowledgement that a statutory regime can implicitly create a duty of care for purposes of the tort of negligence — is R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42:

[43] A complicating factor is the role that legislation should play when determining if a government actor owed a prima facie duty of care. Two situations may be distinguished. The first is the situation where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme. The second is the situation where the duty of care is alleged to arise from interactions between the claimant and the government, and is not negated by the statute.

[44] The argument in the first kind of case is that the statute itself creates a private relationship of proximity giving rise to a prima facie duty of care. It may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care. ... [I]t may be difficult to infer that the legislature intended to create private law tort duties to claimants. This may be even more difficult if the recognition of a private law duty would conflict with the public authority's duty to the public....

Thus, the Court of Appeal's unexplained statement in Rausch – regarding "an implied statutory duty of care" — must be understood in light of these developments.

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