City of Pickering wild boar case goes on

The Court of Appeal for Ontario has confirmed that negligence claim against the City of Pickering in connection with a wild boar operation can proceed.  The respondent in the appeal raised a herd of wild boards on a 10-acre property he occupied as tenant within the City's boundaries.  The City relied on a by-law restricting the keeping of animals to force the respondent to dispose of his herd.  He then sued the City for damages suffered as a result of the loss of his business.  One of his claims was that the City was negligent in its actions, and the Court of Appeal was to decide whether that claim could proceed.

Justice Epstein summarized her decision as follows:

The viability of Mr. Rausch’s negligence claim turns on three issues: first, whether the City may be said to owe either a statutory or common law duty of care; second, if a common law duty of care may be said to exist, whether Mr. Rausch has pleaded such a duty; and, third, if so, whether it is statute-barred. In my view, the statutory framework imposes no explicit duty of care. That said, I would not foreclose the possibility that Mr. Rausch may be able to establish an implied statutory duty of care. I am also of the view that Mr. Rausch’s amended pleading advances a viable common law duty of care – one that is not out of time. I would therefore confirm the order of the Divisional Court and dismiss the City’s appeal.

The Court of Appeal did not decide whether the claim against the City was successful - it decided whether there was a possibility that it could be successful.  As the decision was in the affirmative, the Court confirmed that the negligence claim could proceed to trial.

It is important to note, however, that the Court of Appeal did find that there could be no negligence claim based on the alleged breach of the Farming and Food Production Protection Act, which prevents a municipal by-law from restricting a normal farm practice that is part of an agricultural operation.  The Court found that the legislation, in the specific circumstances of this case, imposed no explicit statutory duty on the City.  However, the Court noted that its decision "does not foreclose the possibility that there may be an implied statutory duty of care arising out of the statuory scheme."

The negligence claim was allowed to proceed on the basis that the city may owe the respondent a common law (rather than a statutory) duty of care "to exercise its considerable power over farmers in a manner that reduces the risk of unwarranted harm".

Read the decision at: Rausch v. Pickering (City).