Wild Boars and Duty of Care: Statutory Authority and Civil Liability

Boar

Ontario Court of Appeal (OCA) has refused to strike a claim against the City of Pickering, filed by a wild boar farmer.

The December 2013 decision, Rausch v. Pickering (City), 2013 ONCA 740, considers issues and tests related to pleadings, limitations, duty and standards of care, and motions to strike. It also considers the relationship between statutory authority and civil liability.

The City of Pickering had appealed a 2012 order of the Divisional Court, which dismissed an appeal from the order of Justice Elizabeth M. Stewart of the Superior Court of Justice. Pickering argued that the negligence claim is not tenable, among other issues.

Municipal By-Law Charges Were Withdrawn

Rausch had raised wild boars on his property, within the municipality of Pickering. The city ordered him to remove the animals, which he did, but Rausch was charged for violating a Pickering by-law anyway. He later learned that the charges had been filed on advice from Transport Canada, not as a result of a city investigation.

The by-law charges were dropped and Rausch filed a civil claim, initially for trespass, abuse of process and malicious prosecution. A claim for negligence was added after examinations for discovery, with a court order that was subsequently affirmed by an order of the Divisional Court.

Statutory and common-law duties of care could be found based on the facts plead, the appeal court found, in a unanimous decision written by Madam Justice Gloria Epstein.

‘Factual Matrix’ Met Despite Faulty Pleadings

While it contained faults, Rausch’s pleadings were broad enough to support a negligence claim based on a common law duty of care, court found.

“Courts have refused to strike pleadings even in cases in which the plaintiff has not specifically pleaded all elements of the cause of action, so long as those elements are implicit in the rest of the pleadings,” Justice Epstein wrote. “Rausch’s amended pleading contains the factual matrix necessary to support a negligence claim based on a common law duty of care.”

In relation to the limitations period element, the appeal court agreed with the Divisional Court — the negligence claim arose out of facts already contained in Mr. Rausch’s pleading; the amendments were therefore not statute-barred.

Normal Farm Practice Protected

Rausch had added the negligence claim based on the theory that the City owed him a duty of care pursuant to s. 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (FFPPA). That section prevents a municipality from restricting a normal farm practice. By enforcing a by-law that contravened the Act, the City acted ultra vires, which amounted to a breach of the duty of care, the amendment plead.

The purpose of the FFPPA “is as narrow as the purpose of the Municipal Act is broad,” the appeal court notes.

Tests: Causes of Action, Duty of Care

The decision discusses the test and associated principles that apply to a motion to strike pleadings for not disclosing a reasonable cause of action. “The test is stringent, and the moving party must satisfy a very high threshold in order to succeed,” the court notes, citing Amato v. Welsh, 2013 ONCA 258.

Court also found that “A statutory duty of care may be explicit or implied.”

The Municipal Act does not relieve a municipality of these duties, the appeal court found. “While the Municipal Act relieves the City from liability for many acts, it expressly does not relieve it of liability for torts, for damage that results from acts done in bad faith or for the exercise of discretion with respect to operational decisions,” Justice Epstein wrote.

This is a useful decision, for its analysis of concurrent issues and existing tests, and application of principles. Rausch has implications for actions against municipalities, and for paralegals on either side of a motion to strike.

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