Monday, December 9, 2013
Rausch v. The Corporation of the City of Pickering, 2013 ONCA 740:
 Although I would reject Mr. Rausch's claim that there is an explicit statutory duty of care, I do not agree with the City that this is the end of the matter. In my view, when negligence is alleged against a government actor, the reach of the duty of care divining rod is not restricted to the legislative scheme and whether it imposes a statutory duty of care. In R. v. Imperial Tobacco, 2011 SCC 42,  3 S.C.R. 45, at paras. 43-45, the Supreme Court recognized that in addition to a statutory duty of care set out in the governing legislation, there may be a common law duty of care that arises by virtue of interactions between the statutory actor and a private individual.
 Before analyzing whether there may be a common law duty of care, the statutory scheme must be examined to determine whether it forecloses such a duty.
 In my view, the statutory scheme in play in this case does not preclude the recognition of a common law duty of care. I see nothing in either the FFPPA or the Municipal Act that impedes a finding that such a duty may exist in appropriate circumstances.
 As I noted earlier, 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: see ss. 448-450.
 It is true that the FFPPA created a tribunal to determine whether a farm operation is protected by s. 6. However, this court has held that the FFPPAdoes not preclude a court's making the determination, if warranted by the circumstances: Pyke, at para. 55.
 Having concluded that the statutory scheme does not foreclose the existence of a common law duty of care, two issues must be determined in order to resolve the question of whether Mr. Rausch's negligence claim based on such a duty is viable and should otherwise be allowed to proceed to trial, subject to the limitation period issue. First, in these circumstances, can it be said that the City may owe a common law duty to Mr. Rausch? Second, does the amended pleading, read generously, advance such a claim?
But the truth is the legislation, while foolish, was passed by the duly elected Parliament of Canada acting within their constitutional jurisdiction.
While it may, in certain bizarre circumstances, potentially lead to a term of incarceration for non-payment (and inability to pay would likely remove that possibility) it is hard to see how the fines are a cruel or unusual punishment.
Judges can massage the law a little (see the 99 years to pay) but broadly put unless a law in unconstitutional a judge has a duty to enforce the laws.
I may think, for example, our current drug laws are misguided and counterproductive – but if I was a judge I would nevertheless enforce those foolish laws.
Parliament made a mistake with the mandatory victim fine surcharge – I hope the law is repealed one day.
But until it is repealed it is the law:
Judges defy order to impose Tories’ victim-services surcharge
SEAN FINE - JUSTICE WRITER
The Globe and Mail Published Monday, Dec. 09 2013, 6:00 AM EST
Judges in several provinces are rebelling against the Conservative government’s attempt to make all convicted criminals pay a surcharge to fund victim services. The mandatory charge is a new flashpoint between the judiciary and the federal government. Two years ago, an Ontario Court judge opposed to The Truth in Sentencing Act – which ended two-for-one credit for pretrial detention – called on other judges to give shorter sentences to make up for harsh jailhouse conditions. The victim-services fine has sparked another backlash in the judiciary, now that judges can no longer waive the “victim fine surcharge” of up to $200 for impoverished offenders. In Ontario, British Columbia and Alberta, judges have either refused to order criminals to pay or have found creative ways around ordering the mandatory surcharge, such as giving an offender decades – even 99 years – to pay. Ontario Court Judge Stephen Hunter of Ottawa even ruled that the mandatory surcharge is unconstitutional, without being asked to do so by the defence. The Crown is appealing that ruling. There are no hard numbers on how many judges are refusing to apply the new law, which requires either a 30-per-cent surcharge on any fine levied, or if no fine is set, a flat fee of $100 or $200, depending on the seriousness of the offence. Ontario’s Ministry of the Attorney-General said it does not track victim-fine surcharges, and Associate Chief Justice Lise Maisonneuve of the Ontario Court would not provide an estimate. But lawyers in several jurisdictions say the opposition is widespread. In Kitchener, Ontario Court Justice Colin Westman is issuing $1 fines, resulting in a 30-cent surcharge, to any impoverished offender.
"Mounties say a Surrey man will likely face several charges after a destructive weekend that included smashing a large stolen truck into six police cruisers and flooding a section of Burnaby Hospital by ripping the head from an emergencyroom fire sprinkler. Staff Sgt. Maj. John Buis said the man stole a large rental truck and, just after 1 a.m., drove it into six unoccupied cruisers parked outside a community policing station near Burnaby's Lougheed Mall."