The Second Opinion: What The Heck Did The Ontario Court Of Appeal Mean When It Spoke Of An 'Implied Statutory Duty Of Care'?

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

In the past decade, the staid law of negligence has undergone a number of interesting developments in Canada, focusing particularly on the threshold question of whether a duty of care is or is not owed by a particular plaintiff to a particular defendant in novel circumstances.

A recent ruling of the Ontario Court of Appeal, Rausch v. The Corporation of the City of Pickering, 2013 ONCA 740, has highlighted an interesting and relatively obscure aspect of this question.

The Rausch ruling turned on a dispute between a farmer and a municipality. The farmer raised wild boars, and the city warned him that his business violated the municipal Exotic Animals By-law. After shutting down his operation, the farmer came to the conclusion that the city had been mistaken, and that his operation had, in fact, been exempted from the By-law by the provincial Farming and Food Production Protection Act (or the FFPPA).

The farmer sought to recover damages reflecting the loss of his boar-raising operation. He sued the city, alleging that it had acted negligently in its interpretation and enforcement of the By-law. A necessary prerequisite for a claim in negligence is, of course, the existence of a duty of care owed by the defendant to the plaintiff. The farmer alleged that the city had owed him such a duty of care as a result of the provisions of the FFPPA.

The Court of Appeal endorsed the ruling of the majority of the Divisional Court, below, and refused to strike out the farmer's negligence claim.

The Court of Appeal agreed that there was nothing in the FFPPA which supported the existence of an "explicit statutory duty of care" owed by the city to the farmer, but found that the FFPPA might give rise to "an implied statutory duty of care":

[44] .....A statutory duty of care may be explicit or implied. I have found that in these circumstances, the legislation imposed no explicit statutory duty on the City. However, while not raised in the courts below or on appeal, in my view this decision does not foreclose the possibility that there may be an implied statutory duty of care arising out of the statutory scheme.

For many readers, the concept of a "statutory duty of care" and particularly an "implied statutory duty of care" satisfying a key element of a common law cause of action will appear anomalous. It is therefore regrettable that the Court of Appeal in Rausch provided no...