Monday, December 9, 2013

A statutory body may be liable for a common law duty of care

Rausch v. The Corporation of the City of Pickering, 2013 ONCA 740:

[45]       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, [2011] 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.

[46]       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. 

[47]       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. 

[48]       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.

[49]       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.

[50]       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? 

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