The OCA 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
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
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 ProductionProtection 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 Actexpressly 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
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
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