Rausch v. The Corporation of the City of Pickering

[Indexed as: Rausch v. Pickering (City)]

112 O.R. (3d) 41

2012 ONSC 4688

Ontario Superior Court of Justice,

Divisional Court,

Aston, Murray, Harvison Young JJ.

August 22, 2012

Torts -- Negligence -- Duty of care -- Plaintiff removing wild boars from his property after being told by representatives of defendant city that he would be charged under Exotic Animal By-law if he failed to [page42 ]do so -- Plaintiff suing defendant and pleading that defendant was negligent in failing to consider whether his raising of wild boars was exempt from municipal by-laws under s. 6(1) of Farming and Food Production Protection Act as it constituted normal farm practice carried on as part of agricultural operation -- Motion judge properly dismissing defendant's motion to strike negligence claim under Rule 21 of Rules of Civil Procedure -- It was not plain and obvious that there was no statutory duty of care in circumstances of this case -- Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, s. 6(1) -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21.

The plaintiff was a farmer who raised wild boar on his property. The defendant took the position that the Exotic Animal By-law precluded the keeping of wild boars. The plaintiff alleged that he removed the boars from his property after being told by representatives of the defendant that he would be charged under the by-law if he did not do so. He was charged after he removed the boars, but the charges were withdrawn, with no explanation, a week before the trial date. The plaintiff brought an action claiming damages for, among other things, negligence. He pleaded that the defendant was negligent as it failed to consider whether his raising of wild boars constituted a "normal farm practice carried on as part of an agricultural operation", which is exempted from the operation of municipal by-laws under s. 6(1) of the Farming and Food Production Protection Act, 1998. A motion by the defendant under Rule 21 of the Rules of Civil Procedure to strike the allegations of negligence was dismissed. The defendant appealed.

Held, the appeal should be dismissed.

Per Harvison Young J.: The conclusion of Aston J. that there may be a statutory duty of care in the circumstances is agreed with. It was also not plain and obvious that there was no common law duty of care. Read generously, the essence of the pleadings supported a prima facie common law duty of care. Arguably, the plaintiff was singled out by defendant's by-law enforcement authorities, creating a close and direct relationship between him and the defendant. The plaintiff's right to earn a living was at stake. He alleged that he disposed of his animals, resulting in loss, after being told that he was in breach of the by-law, which constituted detrimental reliance. It was not plain and obvious that there were any policy reasons that negated the prima facie duty of care. The availability of the scheme set out in s. 6(2) of the Act (which provides for application to the Normal Farm Practices Protection Board for a determination as to whether a practice is a normal farm practice for purposes of the non- application of a municipal by-law) did not preclude the possibility of an action in negligence.

Per Aston J.: The plaintiff had not established a common law duty of care. That alternative theory was never part of his submissions before the motion judge or the Divisional Court. It was not plain and obvious that there was no statutory duty of care. The Act may sometimes impose a duty on the defendant to refrain from enforcing its by-laws on the basis that an activity is part of a "normal farm practice" carried on as part of an "agricultural operation". Section 6(1) of the Act establishes the possibility of a relationship of proximity sufficient to support a duty of care in a given case.

Per Murray J. (dissenting): It was plain and obvious that a claim in negligence could not succeed. The defendant had no role in the application or administration of the Act. The Act imposed no duty or obligation on the defendant to do or refrain from doing anything with respect to the enactment or enforcement of its by-laws. The defendant had no statutory authority or duty imposed on it by the [page43 ]Act, and as a result, there could be no breach of the Act by the defendant. If that conclusion was wrong, there were policy considerations negating a prima facie duty of care. A specific remedy was available to farmers under s. 6(2) of the Act.

APPEAL from an order dismissing a motion to strike a negligence claim.

Cases referred to

Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 527, 5 Build. L.R. 1, 4 I.L.R. 21, 243 E.G. 523, [1977] E.G.D. 604 (H.L.), apld

Other cases referred to

Anger v. Berkshire Investment Group Inc., 2001 24141 (ON CA), [2001] O.J. No. 379, 141 O.A.C. 301, 102 A.C.W.S. (3d) 1067 (C.A.); Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, [1983] S.C.J. No. 14, 143 D.L.R. (3d) 9, 45 N.R. 425, [1983] 3 W.W.R. 97, 23 C.C.L.T. 121, 18 A.C.W.S. (2d) 133; Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79, 206 D.L.R. (4th) 193, 277 N.R. 113, [2002] 1 W.W.R. 221, J.E. 2001-2153, 160 B.C.A.C. 268, 96 B.C.L.R. (3d) 36, 8 C.C.L.T. (3d) 26, 110 A.C.W.S. (3d) 943; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, 2001 SCC 80, 206 D.L.R. (4th) 211, 277 N.R. 145, J.E. 2001-2152, 153 O.A.C. 388, 34 Admin. L.R. (3d) 38, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35, 110 A.C.W.S. (3d) 944; Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577, [2003] O.J. No. 771, 224 D.L.R. (4th) 419, 169 O.A.C. 201, 15 C.C.L.T. (3d) 194, 120 A.C.W.S. (3d) 1067 (C.A.); Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41, 285 D.L.R. (4th) 620, 368 N.R. 1, J.E. 2007-1867, 230 O.A.C. 253, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 50 C.R. (6th) 279, 40 M.P.L.R. (4th) 1, 160 A.C.W.S. (3d) 573, EYB 2007-124525; Holland v. Saskatchewan, [2008] 2 S.C.R. 551, [2008] S.C.J. No. 43, 2008 SCC 42, EYB 2008-136658, J.E. 2008-1434, 167 A.C.W.S. (3d) 427, 376 N.R. 316, 294 D.L.R. (4th) 193, [2008] 9 W.W.R. 193, 311 Sask. R. 197, 58 C.C.L.T. (3d) 1; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, J.E. 90-1436, 49 B.C.L.R. (2d) 273, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105, 23 A.C.W.S. (3d) 101; Leek v. Vaidyanathan, [2011] O.J. No. 200, 2011 ONCA 46, 329 D.L.R. (4th) 190 (C.A.); Lomas v. Rio Algom Ltd. (2010), 99 O.R. (3d) 161, [2010] O.J. No. 932, 2010 ONCA 175, 259 O.A.C. 333, 316 D.L.R. (4th) 385, 186 A.C.W.S. (3d) 665, 81 C.C.P.B. 1; Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690, [1995] O.J. No. 3035, 34 Admin. L.R. (2d) 51, 58 A.C.W.S. (3d) 398 (Gen. Div.); Pyke v. Tri Gro Enterprises Ltd. (2001), 2001 8581 (ON CA), 55 O.R. (3d) 257, [2001] O.J. No. 3209, 204 D.L.R. (4th) 400, 148 O.A.C. 307, 41 C.E.L.R. (N.S.) 29, 107 A.C.W.S. (3d) 176 (C.A.); R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, 308 B.C.A.C. 1, 419 N.R. 1, 2011EXP-2380, J.E. 2011-1326, 335 D.L.R. (4th) 513, 205 A.C.W.S. (3d) 92, 21 B.C.L.R. (5th) 215, 25 Admin. L.R. (5th) 1, 86 C.C.L.T. (3d) 1, [2011] 11 W.W.R. 215, 83 C.B.R. (5th) 169; Rausch v. Pickering (City), [2011] O.J. No. 4812, 2011 ONSC 6387, 210 A.C.W.S. (3d) 27, 92 M.P.L.R. (4th) 99 (S.C.J.), affg [2011] O.J. No. 2952, 2011 ONSC 2797 (S.C.J.); Welbridge Holdings Ltd. v. Winnipeg (Greater), 1970 1 (SCC), [1971] S.C.R. 957, [1970] S.C.J. No. 102, 22 D.L.R. (3d) 470, [1972] 3 W.W.R. 433; Wellington v. Ontario (2011), 105 O.R. (3d) 81, [2011] O.J. No. 1615, 2011 ONCA 274, 277 O.A.C. 318, 81 C.C.L.T. (3d) 230, 333 D.L.R. (4th) 236; Williams v. Canada (Attorney General) (2009), 95 O.R. (3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378, 310 D.L.R. (4th) 710, 70 C.P.C. (6th) 213, 249 O.A.C. 150, 57 M.P.L.R. (4th) 164, 66 C.C.L.T. (3d) 193, 177 A.C.W.S. (3d) 560 [page44 ]

Statutes referred to

Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, ss. 1(1), 4(1), 4(2), 6 [as am.], (1), (2), (6), (15), (16), 8(2)

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.]

Mortgage Brokers Act, R.S.B.C. 1996, c. 313 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21, 21.01, 21.01(1)(b), 21.01(2), 21.01(3)

David A. Brooker, for plaintiff (respondent). Stuart Zacharias, for defendant (appellant).

HARVISON YOUNG J.: -- Introduction and Background

[1] The appellant, City of Pickering, appeals from an order dismissing its motion to strike allegations of negligence in the respondent James Rausch's Amended Amended Statement of Claim.

[2] Mr. Rausch is a farmer who raised wild boars on his property. Following a complaint by neighbours, the City sought to enforce the City of Pickering By-law No. 1769/83, Exotic Animal By-law (September 17, 1984) against Mr. Rausch. This by- law prohibits the keeping of livestock in the City. The City took the position that the by-law precluded the keeping of wild boars.

[3] Mr. Rausch alleges that, following the receipt of correspondence from the City, the City representatives told him that if he did not remove the wild boars from his property, they would be forcibly removed and he would be charged under the by-law. He claims that he removed the majority of his wild boars because of this, causing him to incur losses as he had been cultivating his herd with a view to commercial sale. He was, in fact, charged after he removed the boars from his property. The charges were withdrawn a week before the trial date, with no explanation given.

[4] Mr. Rausch then commenced an action claiming substantial damages. His original Statement of Claim alleged trespass, abuse of process and malicious prosecution. He then sought and obtained leave to amend his Statement of Claim to plead that the City was negligent and breached s. 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the "FFPPA"). [page45 ]

[5] The paragraphs most relevant to the allegation of negligence read as follows:

18A. Further, or in the alternative, the Plaintiff states that the said by-laws as referenced herein are not applicable to him pursuant to the provisions of s. 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, as amended (the "Act"). Specifically, the Plaintiff states that his raising of wild boars as hereinbefore described constitute a "normal farm practice" as defined under the provisions of the Act and accordingly, pursuant to s. 6 thereof, the by-laws in question would not apply to him or to his property.

18B. The failure of the Defendant to comply with the terms of s. 6 of the Act rendered any enforcement proceedings as against the Plaintiff ultra vires of the Defendant. Additionally, by taking enforcement procedures as hereinbefore described against the Plaintiff, the Defendant was in breach of the terms of the Act as the by-laws in question did not apply in the circumstances.

18C. The Plaintiff states that the Defendant knew, or ought to have known, that the bylaws in question did not apply to him given the provisions of the Act and that they should not have taken any enforcement proceedings as hereinbefore described, whether advising him to remove the wild boars from his property as set out in the correspondence from Brad Suckling . . . charging him under any or all by-laws, or proceeding with the prosecution of him under the said by- laws.

18D. The Plaintiff states that the said statutory breach is a direct cause of damages as set out herein for which the Defendant is liable in negligence.

[6] Subsections 6(1) and (2) of the FFPPA provide as follows:

6(1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

(2) A person described in subsection (3) or a municipality may apply to the Board, in a form acceptable to it, for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.

[7] The heart of Mr. Rausch's claim in negligence is that the City had a duty to consider whether his operation was a "normal farm practice" pursuant to s. 6(1) before telling him to destroy his herd and charging him under the by-law. Mr. Rausch argues that s. 6(1) creates a statutory duty on the part of the City to consider whether a particular operation or practice constitutes a "normal farm practice". He argues that in the circumstances of this case, the City had and breached its duty of care which it owed to him when it advised him to get rid of his herd when it knew or ought to have known that his wild boars operation was a "normal farm practice", and that he suffered damages as a result.

[8] In its motion to strike the allegations of negligence, the City argued that the allegations failed to disclose a reasonable cause of action. The motion judge noted [[2011] O.J. No. 2952, 2011 ONSC 2797 (S.C.J.)] [page46 ]that, as per Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, [1983] S.C.J. No. 14, 143 D.L.R. (3d) 9, the breach of a statute does not give rise to an independent cause of action. However, at para. 9, she found that "[i]f the Plaintiff is able to prove at trial that the Defendant breached the Act by prosecuting him under the By-law when it knew or ought to have known that it did not apply to him and was negligent in so doing, the Plaintiff may succeed in his claim. In any event, it is not plain and obvious at this stage that the Plaintiffs claim in this regard is doomed to fail."

[9] For these reasons, the motion judge refused to strike the amendments. The City also sought an alternative motion for a stay of the action, pending the determination by the Normal Farm Practices Protection Board of the question of whether Mr. Rausch's practice with respect to the keeping of wild boars was a "normal farm practice" as contemplated under the FFPPA. The motion judge, at paras. 10-12, determined that it was inappropriate to stay the action in order to allow the Board (which is established under the FFPPA) to determine whether Mr. Rausch was engaged in a "normal farm practice" within the meaning of the FFPPA, on the basis that, if necessary, this issue could be determined by the Superior Court of Justice at trial. The City has not appealed from the dismissal of the motion for a stay.

[10] The sole issue on this appeal is whether the motion judge erred in law in dismissing the City's Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] motion.

[11] I agree with my colleague Aston J. that there may be a statutory duty of care in the circumstances and, for this reason alone, it is not plain and obvious that the action cannot succeed. In my view, however, the circumstances as alleged in this case may give rise to a common law duty of care on the part of the City, even in the absence of a statutory duty of care. Accordingly, I conclude that it is not plain and obvious that the action cannot succeed and would therefore dismiss the appeal.

Standard of Review

[12] The law is clear that, on an appeal from a judge's decision, the applicable standard of review is one of correctness with respect to issues of law or legal principle: see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33. The standard of review for findings of fact is that such findings cannot be reversed unless there is a palpable and overriding error: see Housen, at para. 10. Questions of mixed fact and law are on a spectrum. If a legal question can be separated out, [page47 ]it will be reviewed for correctness, but otherwise, questions of mixed fact and law will not be overturned absent palpable and overriding error: see Housen, at para. 36.

Law and Analysis

[13] In order to strike an allegation on the basis that it discloses no cause of action under rule 21.01(1)(b) of the Rules of Civil Procedure, it must be plain and obvious that it discloses no reasonable cause of action: see Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321. The issue here, to use McLachlin C.J.C.'s words from Holland v. Saskatchewan, [2008] 2 S.C.R. 551, [2008] S.C.J. No. 43, 2008 SCC 42, at para. 14, is whether the allegation "clearly cannot succeed in law and hence must be struck at the outset".

Positions of the Parties

[14] The City submits that it is plain and obvious that the action cannot succeed for two reasons. First, it argues that there is no articulable breach of statute, and, second, even if there were, a statutory breach of duty does not amount to negligence in and of itself. It is necessary, at this second stage, to establish the existence of a duty of care.

Is it Plain and Obvious that the Plaintiff Cannot Establish a Duty of Care?

[15] Mr. Rausch agrees that a simple breach of a statute does not, in and of itself, amount to negligence, but submits that he is not taking such a position. His position is that the statute, properly interpreted, requires some consideration of the question of whether the by-law applies before persons are charged or threatened with prosecution pursuant to its provisions. He argues that the City owed him a duty of care that was breached when City officials negligently failed to consider whether this by-law applied in light of the provision in the FFPPA providing that "[no] municipal by-law applies to restrict a normal farm practice".

[16] The parties through their counsel appear to have assumed in the course of this appeal that an action in negligence cannot lie as a matter of law, unless Mr. Rausch can establish a breach of statutory duty. However, this is not the case as a matter of law. The alternate route of breach of a common law duty of care may also be available: see Hill v. Hamilton- Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41; and R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42. [page48 ]The Supreme Court of Canada put the point in Imperial Tobacco, at para. 43:

The two situations may be distinguished. The first is the situation where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme.

The second is the situation where the duty of care is alleged to arise from interactions between the claimant and the government, and is not negated by the statute.

[17] Even if it were established that there was no statutory breach of duty, it would be unfair, in my view, to dismiss the action on the basis that it is plain and obvious that it cannot succeed when the essence of the pleadings, read generously, support a claim arising out of a common law duty of care.

[18] The Amended Amended Statement of Claim, with one qualification which I will address below, is broad enough to cover a negligence claim arising out of a common law duty of care. Mr. Rausch alleges at para. 18C of his Statement of Claim that the City "knew, or ought to have known, that the bylaws in question did not apply to him given the provisions of the Act and that they should not have taken any enforcement proceedings as hereinbefore described". Earlier in the Statement of Claim, Mr. Rausch details that he began to raise wild boars for human consumption in 1997, and that in order to produce animals for the "high end" commercial market, it was necessary to breed only high-quality animals and cull his herd. At para. 6, he also alleges that he had built fencing, pens, feeding and breeding areas, and that by 2005, he had developed the herd well enough to begin having animals for slaughter packaged and sold on the international market as wild boar meat. He also states that his operation was located "in a rural area". While it would have been better to state expressly that the City "knew or should have known" that the by-law did not apply as a result of the physical set-up, pleadings are to be read generously in Rule 21 motions: see, e.g., Williams v. Canada (Attorney General) (2009), 95 O.R. (3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378, at para. 10; Wellington v. Ontario (2011), 105 O.R. (3d) 81, [2011] O.J. No. 1615, 2011 ONCA 274, at para. 14.

A Common Law Duty of Care

[19] In Hill, Mr. Hill had been investigated by the police, arrested, tried, wrongfully convicted and ultimately acquitted after spending more than 20 months in jail for a crime he did not commit. The trial judge in the action dismissed the negligence claim. The Supreme Court of Canada unanimously recognized [page49 ]the common law tort of negligent investigation, although a majority also concluded that the police had not breached their duty of care on the evidence in that case.

[20] The court found that police officers owe a duty of care to suspects, that their conduct should be measured against the standard of how a reasonable officer in like circumstances would have acted and that they may be liable for the harm that results if they fail to meet this standard.

[21] In considering whether a duty of care arises at common law, a court must ask two main questions: see Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.), as affirmed and explained in a number of cases (Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79, at paras. 24, 29-39; and Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, 2001 SCC 80, at para. 10). First, does the relationship between the plaintiff and the alleged tortfeasor disclose sufficient foreseeability and proximity to establish a prima facie duty of care? If so, the court must ask whether there are compelling policy reasons that negate the duty of care.

Foreseeability and Proximity

[22] The Supreme Court of Canada in Hill held that the foreseeability and proximity test was met, giving rise to a prima facie duty of care. It recognized the relationship between police and suspect as one which, while not hitherto recognized as giving rise to a duty of care, was marked by sufficient proximity that it should be.

[23] The first and most important factor cited by the Supreme Court of Canada in applying this test was whether there was a relationship between the alleged wrongdoer and the victim, usually described by the words "close and direct" (at para. 29). The chief justice, writing for the court on this issue, stated, at para. 30, that "[w]hile not necessarily determinative, the presence or absence of a personal relationship is an important factor to consider in the proximity analysis".

[24] The chief justice acknowledged, at para. 31, the fact that there may be overlap between the first and second limbs of the Anns test, emphasizing that in deciding whether a duty of care exists, all relevant concerns should be addressed. In applying the test to the facts in Hill, the chief justice continued, at paras. 32-34:

In this appeal, we are concerned with the relationship between an investigating police officer and a suspect. The requirement of reasonable foreseeability is clearly made out and poses no barrier to finding a duty of [page50 ]care; clearly negligent police investigation of a suspect may cause harm to the suspect.

Other factors relating to the relationship suggest sufficient proximity to support a cause of action. The relationship between the police and a suspect identified for investigation is personal, and is close and direct. We are not concerned with the universe of all potential suspects. The police had identified Hill as a particularized suspect at the relevant time and begun to investigate him. This created a close and direct relationship between the police and Hill. He was no longer merely one person in a pool of potential suspects. He had been singled out. The relationship is thus closer than in Cooper and Edwards. In those cases, the public officials were not acting in relation to the claimant (as the police did here) but in relation to a third party (i.e. persons being regulated) who, at a further remove, interacted with the claimants.

A final consideration bearing on the relationship is the interests it engages. In this case, personal representations and consequent reliance are absent. However, the targeted suspect has a critical personal interest in the conduct of the investigation. At stake are his freedom, his reputation and how he may spend a good portion of his life. These high interests support a finding of a proximate relationship giving rise to a duty of care.

[25] This is highly analogous to the present case. Mr. Rausch was clearly "individualized" by the by-law enforcement authorities of the City. There was correspondence and there were visits to Mr. Rausch's premises. Photos were taken. Mr. Rausch was advised to get rid of his animals and was charged. While his personal freedom is not engaged as was Mr. Hill's, his right to earn a living clearly is, and he does allege that he was told that he was in breach of the by-law and disposed of his animals, resulting in loss, which constituted detrimental reliance, a factor that the chief justice noted to be absent in Hill. In short, it is not plain and obvious that there is no prima facie duty of care arising at common law.

Policy Reasons Negating the Prima Facie Duty of Care

[26] This second stage of the Anns test considers whether there are broader policy reasons for declining to recognize a duty of care owed by the defendant to the plaintiff. At the outset, it is important to remember that in a Rule 21 motion, the ultimate question is whether it is plain and obvious that the action cannot succeed. Recent authority indicates a reluctance to dismiss claims on the basis of the Anns test in the absence of a full evidentiary record: see Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577, [2003] O.J. No. 771, 224 D.L.R. (4th) 419 (C.A.), at paras. 24, 52; and Anger v. Berkshire Investment Group Inc., 2001 24141 (ON CA), [2001] O.J. No. 379, 141 O.A.C. 301, 102 A.C.W.S. (3d) 1067 (C.A.), at para. 15. Issues of law which raise significant policy considerations are normally better determined on a full factual [page51 ]record after trial where the judge has been able to make findings that form the basis for the legal analysis and conclusions: see Leek v. Vaidyanathan, [2011] O.J. No. 200, 2011 ONCA 46, at para. 3.

[27] Hill is, in my view, highly analogous and applicable to the second limb of the Anns test.

[28] In Hill, it was argued that the quasi-judicial nature of a police decision to investigate is similar to the decision made by a prosecutor. In disagreeing with the applicability of the comparison, the chief justice held that the job of the police is not to weigh evidence according to legal standards or to make legal judgments as prosecutors, defence attorneys and judges are required to do. Rather, the job of police in investigating is primarily to gather and evaluate evidence, although they do have to weigh evidence to some extent. As the chief justice noted in para. 50, the distinction between the roles is properly reflected in the standard of care imposed once a duty is recognized: "The standard of care required to meet the duty is not that of a reasonable lawyer or judge, but that of a reasonable police officer" (emphasis in original). The same distinction applies to the present case. The standard of care required to meet the duty would be that of a reasonable by-law enforcement officer.

[29] The court also rejected the existence of discretion in the course of police investigations as a reason for negating the existence of a duty. Again, the chief justice noted that the discretion inherent in police work is to be taken into account in formulating the standard of care, not in determining whether a duty of care exists. The same point applies to this situation.

[30] Finally, the court rejected suggestions that the recognition of a duty of care would create a chilling effect on police investigations or that it would result in a flood of litigation.

[31] In my view, it is not plain and obvious that there are any policy reasons that negate the prima facie duty of care in the circumstances of this case.

[32] Concerns about potentially overbroad liability may be addressed by the formulation of the standard of care. Mr. Rausch alleges that the City, in enforcing the by-law, had a duty to consider whether the by-law actually applied to him before charging him and/or advising him to get rid of his animals. In essence, the allegation is that a reasonable by-law enforcement officer should, in the circumstances, have considered whether s. 6(2) of the FFPPA applied. This will be a question of fact, as the issue of standard of care always is. If, at trial, Mr. Rausch establishes that the operation appeared farm-like, in other words, that the City knew that he was raising the animals with a view to [page52 ]slaughter them for commercial sale, the trial judge might conclude that the City knew or ought to have known that Mr. Rausch's operation could be a normal farm operation within the meaning of s. 6(2), and that the City failed to meet the standard of care when it did not consider referring the matter to the Board for determination.

[33] Had the City so considered the issue and thus complied with its duty, it might have delayed enforcement and referred the matter to the Board for determination. I refer to this merely as an example of what the standard of care might be in such a case where the facts as proven at trial do raise the possibility that the animals are being farmed and not kept as exotic animals.

[34] The following example is meant to illustrate the situation where there may be a duty of care to consider whether the by-law does apply, but the standard of care is met. Consider a person who is keeping an ostrich in a studio apartment. While the inspector may have a duty to consider whether the by-law applies, it would be absurd to suggest that he or she would be under an obligation to refer this to the Board. A fact-based standard of care analysis would not be required, as the facts do not give rise to any suggestion that a reasonable by-law enforcement officer would think that it could be a normal farming operation. I wish to be clear that I am not suggesting that, because the City has a duty to reasonably enforce the by-law, it will always have a duty to refer every single matter to the Board. What will be required of the City to meet its standard of care will be dependent on the particular facts of each situation. For this reason, it is not obvious to me that a floodgates argument could justify negating the duty of care, particularly at this preliminary stage: see Haskett, at para. 24; and Anger, at para. 15.

The FFPPA Process

[35] Along with my colleague Aston J., I disagree with my colleague Murray J.'s conclusion that the existence of the FFPPA process is exclusive and precludes the possibility of an action in negligence.

[36] The City's position on this point, as supported by Murray J., would mean that it could not be held accountable for negligently enforcing by-laws in situations where it knows or should know that the by-laws do not apply, but where its conduct falls short of being malicious. This is precisely the point made by the chief justice in Hill, as cited above, and I do not see how that is any less applicable here than it was there. In para 35 of Hill, Chief Justice McLachlin noted that the existing remedies for wrongful prosecution and conviction were incomplete "and may [page53 ]leave a victim of negligent police investigation without legal recourse". In my view, the same point may be said about a victim of negligent by-law enforcement. The existence of the Board recourse, along with the possible remedies for wrongful or malicious prosecution do not constitute sufficient policy reasons to negate the prima facie duty of care owed, particularly in the absence of a full evidentiary record.

[37] In addition, I disagree with my colleague Murray J.'s view that, under the statutory scheme, the Board is intended to be the sole and exclusive decision-maker on the question of whether a particular operation is a "normal farm operation". The wording in s. 6(2) is that a person or municipality "may" refer a matter for determination.

[38] In Pyke v. Tri Gro Enterprises Ltd. (2001), 2001 8581 (ON CA), 55 O.R. (3d) 257, [2001] O.J. No. 3209, 204 D.L.R. (4th) 400 (C.A.), the Court of Appeal held that there is nothing in the FFPPA that ousts the jurisdiction of the Superior Court of Justice to determine whether a farming practice is immune from an action in nuisance because it is a normal farm practice. In that case, the Ontario Federation of Agriculture had intervened and argued that courts, in all cases, should decline to exercise their jurisdiction to decide whether a practice is a normal farm practice and leave that determination to the Board. Charron J.A., writing for the court on this issue (although she was in dissent in the result on other grounds), held that there is nothing in the legislation, express or implied, that ousts the jurisdiction of the Superior Court of Justice to decide (on the facts of that case) whether the defendants were immune from liability because the subject matter of the claim is a "normal farm practice" within the meaning of the statute. The reasoning in Pyke applies equally to this case.

[39] The conclusion that the statutory recourse is not exclusive does not exhaust the question of whether its existence constitutes a policy reason negating a duty of care under the second limb of the Ann's test. In my view, its existence does not remove the need for a duty of care in these circumstances.

[40] Mr. Rausch has indicated that he was not aware of the FFPPA before the by-law enforcement steps were taken. It is possible that, assuming the existence of a duty of care to reasonably enforce the by-law, the applicable standard of care would require a reasonable enforcement officer to consider the possibility that s. 6(2) applied and refer the question to the Board for determination. An alternative standard of care might require that the enforcement officer, at a minimum, ensure that the City advise the person of the existence of s. 6(2) so that he or she could refer the question to the Board. [page54 ]

[41] In addition, the suggestion that Mr. Rausch's claim is defeated at the outset because there was no determination by the Board strikes me as fundamentally unfair to Mr. Rausch or others in similar positions. The City did not seek such a determination. There is nothing in the record before us to indicate that the City ever advised Mr. Rausch of s. 6(2) or the right to apply to the Board. Perhaps most notably, the City does not plead in its Statement of Defence that it advised Mr. Rausch of his right to apply to the Board before telling him that he was in violation of the by-law and advising him to get rid of the animals.

[42] Mr. Rausch submits that he did not even know of the process at the time he was told to destroy his herd and it would in my view be unfair to, in effect, penalize him for that. The City should not be able to effectively preempt liability by failing to consider referring the issue to the Board in cases where a plaintiff does not do so because he or she does not know of the issue, and in circumstances where the by-law enforcement officials know or should know that there is some basis for considering that s. 6(2) could apply. There is no suggestion that Mr. Rausch knew anything about s. 6(2) or the Board. The only dispute that Mr. Rausch raised with the City during the period before he disposed of his animals was that his wild boars were not exotic animals within the meaning of the by-law.

[43] In short, recourse to the Board is entirely inadequate to provide a remedy where there is negligent enforcement of the by-law when enforcement officials fail to consider whether s. 6(2) applies and therefore do not apply to the Board for a determination, nor advise the individual of his or her right to do so. The remedies available to persons against whom by-laws are negligently enforced, as alleged by Mr. Rausch, are thus incomplete in much the same way as the chief justice discussed in Hill, at para. 35. It is reasonable to expect that persons be able to rely on the City's enforcement officials to conduct their by-law enforcement in a competent, non-negligent manner.

[44] Following the reasoning in Hill, there is clearly sufficient foreseeability and proximity to support a cause of action against the City for negligently enforcing the by-law against Mr. Rausch.

[45] For the foregoing reasons, I cannot conclude that it is plain and obvious that (i) there could be no prima facie duty of care on the part of the City to consider whether the by-law applied to Mr. Rausch or (ii) there are policy reasons which negate such a duty. [page55 ]

Conclusion on Duty of Care

[46] While Mr. Rausch must establish that he was owed a duty of care, it is not necessary to his negligence claim that it arise from a breach of a statutory duty as opposed to a common law duty of care. While I agree with my colleague Aston J. that the statute did create such a duty, albeit implicitly, such a duty may also arise from a common law duty of care quite apart from the statute. The pleadings are, in general, adequate to support this.

[47] Apart from para. 18D of the Amended Amended Statement of Claim, which asserts that the damage was directly caused by a "statutory breach", the rest of the amended pleadings addressing negligence allege that the by-law was not applicable, the City knew or ought to have known that, and the City was negligent in continuing the enforcement to the extent that it did, causing Mr. Rausch to destroy his animals.

[48] Because the Amended Amended Statement of Claim is, subject to one exception, broad enough to cover a common law duty of care, and because Mr. Rausch raises the essential conduct forming the alleged negligence, I cannot conclude that it is plain and obvious that the claim cannot succeed and should therefore be struck. The exception to this is para. 18D, which alleges that the damage suffered by Mr. Rausch was caused by a breach of statutory duty. I would therefore strike this paragraph with leave to amend it by removing the word "statutory". Such amendment is without prejudice to any position that the parties may have in relation to the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[49] It may be that Mr. Rausch will not be able to prove the facts necessary to establish a duty of care at the second limb of the Anns test at trial, but it is not possible to say that it is plain and obvious that he cannot do so on the basis of the record before the court on this Rule 21 motion.

[50] The motion judge, at para. 9 of her reasons, states that

[i]f the Plaintiff is able to prove at trial that the Defendant breached the Act by prosecuting him under the By- law when it knew or ought to have known that it did not apply to him and was negligent in so doing, the Plaintiff may succeed in his claim. In any event, it is not plain and obvious at this stage that the Plaintiffs claim in this regard is doomed to fail.

[51] As the foregoing reasons explain, I conclude that the motion judge was correct and I would therefore dismiss the appeal, with costs in favour of Mr. Rausch fixed in the amount of $7,500. [page56 ]

[52] ASTON J. (concurring with Harvison Young J. in the result): -- I agree with Harvison Young J. that the appeal is to be dismissed. However, I respectfully decline to adopt her conclusions on the breadth of the City's obligations. Furthermore, I am not prepared to endorse her conclusion that the plaintiff has established a common law duty of care when that alternative theory was never part of the plaintiff's submissions before the motion judge or this court.

[53] I agree with the dissenting opinion of Murray J. that the City was not under any duty to take any steps under the FFPPA before enforcing its by-law. The Act does not impose any proactive duty on the municipality. It did not have to first make an application to the Normal Farm Practices Protection Board. Section 6(1) cf the FFPPA does not impose an investigatory duty on by-law enforcement officers. The City is deemed to be aware of the provisions in s. 6(1) of the FFPPA, but that knowledge is not enough to establish that the City breached any duty of care to a particular person without knowledge of other facts. The City's statutory obligation is very limited.

[54] I only disagree with Murray J.'s opinion, at para. 76, that "the Act imposes no duty or obligation on the City to . . . refrain from doing anything with respect to the . . . enforcement of its by-laws". In some circumstances, it does.

[55] The FFPPA may sometimes impose a duty on the City to refrain from enforcing its by-laws on the basis that an activity is part of a "normal farm practice" carried on as part of an "agricultural operation". Those terms have specific definitions under the FFPPA. Whether the City owes a duty to refrain from enforcing its by-law is dependent on particular facts, more specifically whether it had information upon which it knew or ought to have known that a particular individual was exempt from the applicability of the by-law.

[56] The cases cited by the City are distinguishable. Mr. Rausch does not claim proximity, and a consequential duty of care, as part of some group or class of persons. He claims exemption from the applicability of the by-laws based upon his specific personal circumstances. In my view, s. 6(1) of the FFPPA establishes the possibility of a "relationship of proximity" sufficient to support a duty of care in a given case.

[57] The true character of the plaintiff's claim is that the City caused him damage by enforcing a by-law or by-laws from which he claims to be exempt. Read generously, his pleading asserts that in choosing to proceed as it did the City ran the risk of liability for damages in negligence if it "knew or ought [page57 ]to have known" that the plaintiff was exempt from enforcement of its by-laws.

[58] The allegation in para. 18A of the Amended Amended Statement of Claim that the plaintiff's raising of wild boars constituted a "normal farm practice" under the FFPPA does not include any suggestion of why or when the City ought to have known that fact. The mere presence of wild boars would seem to fall well short. Paragraph 18C baldly asserts that the City "knew, or ought to have known" that the by-laws in question did not apply to him. The issue is whether these conclusory allegations are sufficient, without identifying what specific information the City had at the material time.

[59] On a motion to strike a claim for failing to disclose a cause of action under rule 21.01(1)(b), the facts pleaded in the Statement of Claim are assumed to be true unless obviously incapable of proof. Rule 21.01(2) provides that no evidence is admissible on the motion. The sufficiency of the pleading is a question of law and the standard of review is correctness.

[60] To ultimately prove the City's breach of any duty of care to the plaintiff, Mr. Rausch will have to prove facts known or discoverable at the time of the enforcement of the by- laws which would support his allegation that the City knew, or ought to have known, he was exempt from the enforcement of those by-laws.

[61] In response to the City's formal request to admit, the plaintiff has specifically admitted that at no time prior to the commencement of his action was he even aware of the provisions of the FFPPA. He obviously did not bring the possible applicability of s. 6(1) of the FFPPA to the City's attention before the by-law enforcement steps were taken. The only dispute he raised with the City at the material time was that his wild boars were not exotic animals within the meaning of the by-law. In those circumstances, it may be difficult for him to establish that the City breached any duty of care to him in relation to the FFPPA. However, this is not a motion for summary judgment under rule 20.01(3) in which it would be permissible to consider evidence. Nor is it open to us to consider whether the plaintiffs claim is "obviously incapable of proof" when that issue was not argued before the motion judge or this court.

[62] In my view, on a generous reading of the pleading, and assuming for the purposes of rule 21.01 that the allegations are capable of proof, the plaintiff has articulated a valid cause of action.

[63] The appeal is dismissed, with costs fixed at $7,500 payable to the respondent plaintiff. [page58 ]

[64] MURRAY J. (dissenting): -- The original claim by the plaintiff alleges trespass, abuse of process and malicious prosecution based on by-law enforcement actions taken by the defendant City in relation to wild boars on the plaintiff's property.

[65] Leave to amend the claim was brought in order to allow the plaintiff to allege that the defendants actions were in breach of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the "Act"). The appellant City appeals from the order of Mme. Justice Stewart dated June 28, 2011 [[2011] O.J. No. 2952, 2011 ONSC 2797 (S.C.J.)], in which she refused to strike out paras. 18A, 18B, 18C and 18D of the Amended Amended Statement of Claim. These paragraphs allege that the City was negligent in that it failed to comply with the Act, that its by-law enforcement procedures were ultra vires and in breach of the terms of the Act.

[66] The paragraphs of the Amended Amended Statement of Claim under attack read as follows:

18A. Further, or in the alternative, the Plaintiff states that the said by-laws as referenced herein are not applicable to him pursuant to the provisions of the Farming and Food Production Protection Act, 1998, S.O. 1998, c.1, as amended (the "Act"). Specifically, the Plaintiff states that his raising of wild boars as hereinbefore described constitute a "normal farm practice" as defined under the provisions of the Act and accordingly, pursuant to s. 6 thereof, the by- laws in question would not apply to him or to his property.

18B. The failure of the Defendant to comply with the terms of s. 6 of the Act rendered any enforcement proceedings as against the Plaintiff ultra vires of the Defendant. Additionally, by taking enforcement procedures as hereinbefore described against the Plaintiff, the Defendant was in breach of the terms of the Act as the by-laws in question did not apply in the circumstances.

18C. The Plaintiff states that the Defendant knew, or ought to have known, that the bylaws in question did not apply to him given the provisions of the Act and that they should not have taken any enforcement proceedings as hereinbefore described, whether advising him to remove the wild boars from his property as set out in the correspondence from Brad Suckling, dated January 20, 2006 charging him under any or all by-laws, or proceeding with the prosecution of him under the said by-laws.

18D. The Plaintiff states that the said statutory breach is a direct cause of damages as set out herein for which the Defendant is liable in negligence.

Analysis

[67] In Lomas v. Rio Algom Ltd. (2010), 2010 ONCA 175, 99 O.R. (3d) 161, [2010] O.J. No. 932 (C.A.), Gillese J.A. summarized the law regarding a motion to strike a pleading under the Rules of Civil Procedure, at para. 25:

A claim should be struck if it is plain and obvious that it cannot succeed. Neither the length and complexity of the issues nor the novelty of the [page59 ]cause of action should prevent the plaintiff from proceeding to trial. Important issues of law are normally decided on a full factual record, which allows the trial judge to make findings that form the basis for the legal analysis and conclusions. [Footnotes omitted] These are the legal principles applicable in this case.

[68] I agree with counsel for the City that the plaintiffs claim of negligence is inextricably tied to an alleged breach of the Act. Justice Stewart, in dismissing the defendant's Rule 21 motion, acknowledged as much when she stated [[2011] O.J. No. 2952, 2011 ONSC 2797 (S.C.J.), at para. [9]]: "if the plaintiff is able to prove at trial that the Defendant breached the Act . . . and was negligent in so doing, the Plaintiff may succeed in his claim". Justice Thorbum in her decision dated October 28, 2011 granting leave to appeal [[2011] O.J. No. 4812, 2011 ONSC 6387 (S.C.J.)] stated, at para. 40, that:

Mr. Rausch claims the City, in exercising its statutory power under the municipal By-law, breached the terms of a provincial statute. The starting point for analysis must therefore be the statutory scheme itself. I agree that the starting point for analysis is the Farming and Food Production Protection Act.

The Statutory Scheme: The Farming and Food Production Protection Act

[69] The Act in s. 1(1) defines a "normal farm practice" as a practice that (a) is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or (b) makes use of innovative technology in a manner consistent with proper advanced farm management practices[.]

[70] The Act establishes the Normal Farm Practices Protection Board (hereinafter the "Board"). The Board, pursuant to s. 4(1) and s. 4(2) of the Act, has power to inquire into and resolve a dispute respecting an agricultural operation and to determine what constitutes a normal farm practice.

[71] The Act provides in s. 6 as follows:

6(1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

(2) A person described in subsection (3) or a municipality may apply to the Board, in a form acceptable to it, for a determination as to whether a practice is a normal farm practice for purposes of the non-application of the municipal by-law. [page60 ]

(3) An application may be made by, (a) farmers who are directly affected by a municipal by-law that may have the effect of restricting a normal farm practice in connection with an agricultural operation.

[72] Section 6(6) of the Act requires the Board to hold a hearing to determine whether the practice in question is a normal farm practice and further provides that the municipality and the farmer are parties to the hearing.

[73] Section 6(15) of the Act requires the Board, in determining whether a practice is a normal farm practice, to consider a number of factors: 1. The purpose of the by-law that has the effect of restricting the farm practice; 2. The effect of the farm practice on abutting lands and neighbours; 3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement; 4. The specific circumstances pertaining to the site.

[74] Section 6(16) requires the Board, after completing the hearing, to provide a written decision stating whether the Board is of the opinion that the farm practice is or is not a normal farm practice or the farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision.

[75] Finally, any party to a hearing may appeal an order or decision of the Board on any question of fact, law or jurisdiction to the Divisional Court. (See s. 8(2) of the Act.)

[76] I agree with the appellant that there is no basis on which it can be alleged that the City is in breach of the Act. The City has no role in the application or administration of the Act. The City has no obligation to perform any function or duty under the Act. The City is not authorized under the Act to enact or enforce by-laws. The Act imposes no duty or obligation on the City to do or refrain from doing anything with respect to the enactment or enforcement of its by-laws. The City has no statutory authority or duty imposed on it by the Act and, as a result, there can be no breach of the Act by the City.

[77] The legislation permits the Board to determine whether a by-law restricts normal farm practices and the Board may decide that a by-law is not effective to restrict a normal farm practice. However, a finding by the Board that a by-law is not effective to restrict a normal farm practice is not equivalent to a finding that the by-law is ultra vires and of no force and effect. A determination by the Board that a by-law restricts a normal [page61 ]farm practice simply means that the by-law in question is not effective with respect to the operator of agricultural operations who would otherwise be subject to regulation by the by-law. In any event, if the by-law in question is ultra vires, then the appropriate remedy is judicial review. If the City's actions are ultra vires and its actions are not authorized by statute, then a logical consequence of this is the City cannot be negligent in the exercise of statutory authority.

[78] The basis of the negligence claim alleged is breach of the Act. In this regard, see Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551, [2008] S.C.J. No. 43, which stands for the proposition that the proper remedy for breach of statutory duty by a public authority is judicial review for invalidity and that no parallel action lies in tort. See, also, Welbridge Holdings Ltd v. Winnipeg (Greater), 1970 1 (SCC), [1971] S.C.R. 957, [1970] S.C.J. No. 102, in which Laskin J. stated [at p. 966 S.C.R.]: "It is important to emphasize in this case that a duty of care of the defendant to the plaintiff cannot be based merely on the fact that economic loss would foreseeably result to the latter if By-law No. 177 should prove to be invalid."

[79] That the basis of liability must be found in the Act is apparent from a reading of the cases which apply the test in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.). In Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, the Supreme Court of Canada considered the liability of a public authority in negligence and the application of the test set out by the House of Lords in Anns v. Merton London Borough Council. In Cooper v. Hobart, it was alleged that the British Columbia registrar of mortgage brokers was negligent in not warning investors who provided funds to a mortgage broker that he was aware of serious violations of the Mortgage Brokers Act, R.S.B.C. 1996, c. 313 committed by the broker. The plaintiff investors argued that the registrar should have acted earlier to suspend the broker's licence and to notify the investors that the broker was under investigation. The plaintiffs asserted that if the registrar had acted more promptly, the losses suffered by the investors would have been avoided or diminished. The issue that came before the Supreme Court of Canada was whether the pleadings disclosed a cause of action against the registrar. Justices McLachlin and Major on behalf of the court summarized the two- step process set out in Anns (see paras. 22-24). For liability to arise in negligence, there must be foreseeable harm and, secondly, "a close and direct relationship of proximity or neighbourhood". The Supreme Court affirmed the approach taken by the House of Lords in Anns as follows, at para. 24: [page62 ]

In Anns, supra, at pp. 751-52, the House of Lords, per Lord Wilberforce, said that a duty of care required a finding of proximity sufficient to create a prima facie duty of care, followed by consideration of whether there were any factors negativing that duty of care. This Court has repeatedly affirmed that approach as appropriate in the Canadian context. Was there a duty of care owed by the registrar to investors in Cooper v. Hobart? The Supreme Court began its analysis by engaging in a review of the powers and duties of the registrar under the legislation. The court concluded that the Mortgage Brokers Act did not impose on the registrar a duty of care to individual investors with mortgage brokers regulated by the Mortgage Brokers Act and that the registrar's duty is to the public as a whole. In so concluding, the court stated, at para. 43:

In this case, the factors giving rise to proximity, if they exist, must arise from the statute under which the Registrar is appointed. That statute is the only source of his duties, private or public. Apart from that statute, he is in no different position than the ordinary man or woman on the street. If a duty to investors with regulated mortgage brokers is to be found, it must be in the statute.

[80] Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41 is no exception to the principle that a duty of care must be based in the legislation. Hill is a case in which the Supreme Court of Canada confirmed that the tort of negligent investigation by police exists in Canada. In so holding, the S.C.C. stated, at para. 115:

Police officers have multiple duties. There is no question that one of them is the duty to investigate crime. This duty exists at common law and, in Ontario, is embodied in s. 42 of the Police Services Act, R.S.O. 1990, c. P.15, which describes the general duties of a police officer. In contrast to the situation with police officers, there is no statutory obligation in the Act relating to or touching upon a by-law enforcement officer's duties, i.e., a duty to those in potential non-compliance with a by-law or those to whom a by- law may not apply.

[81] In my opinion, to conclude that the Act imposes a duty on the City to refrain from enforcing its by-laws on the basis that an activity is part of a normal farm operation is incorrect not only for the reasons given above but also because there is a specific remedy available to the farmer under the Act. In applying the Anns test, the existence of an alternate remedy is relevant to the two-part analysis and fatal to the cause of action pleaded in this case. The S.C.C. in Hill dealt with the test for determining whether a person owes a duty of care, at para. 20:

The test for determining whether a person owes a duty of care involves two questions: (1) Does the relationship between the plaintiff and the [page63 ]defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and (2) If so, are there any residual policy considerations which ought to negate or limit that duty of care? (See Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as affirmed and explained by this Court in a number of cases (Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79, at paras. 25 and 29-39; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80, at para. 9; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, at paras. 47-50; Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18, at para. 47.) In determining whether a duty of care exists, the lack of a remedy is a factor properly taken into account. In the context of discussing duty of care, the S.C.C. stated, at para. 35 of Hill, as follows:

On this point, I note that the existing remedies for wrongful prosecution and conviction are incomplete and may leave a victim of negligent police investigation without legal recourse. The torts of false arrest, false imprisonment and malicious prosecution do not provide an adequate remedy for negligent acts. Government compensation schemes possess their own limits, both in terms of eligibility and amount of compensation. As the Court of Appeal pointed out, an important category of police conduct with the potential to seriously affect the lives of suspects will go unremedied if a duty of care is not recognized. This category includes "very poor performance of important police duties" and other "non-malicious category of police misconduct" (paras. 77-78). To deny a remedy in tort is, quite literally, to deny justice. This supports recognition of the tort of negligent police investigation, in order to complete the arsenal of already existing common law and statutory remedies. (Emphasis added) If lack of a remedy may properly be taken into account in determining whether a duty of care exists, then it follows that the existence of a remedy is a factor to be taken into account in applying part 1 of the Anns analysis. In the case at bar, the Act provides for the resolution of conflict between municipal by-laws and operators of agricultural operations regarding farm practices carried on as part of an agricultural operation. The victim of negligent investigation is not without legal recourse. The existence of this remedy supports a conclusion that no duty of care exists and that no action for negligent investigation lies against the City.

[82] To summarize, liability in negligence must be based on a duty found in the legislation governing the public authority in question. In this case, the public authority being sued for negligence does not have any duty to farm operators imposed on it by the Farming and Food Production Protection Act. Unless there is a duty of care to farm operators imposed by the Act on the City of Pickering, the City cannot be found liable for negligence based on an alleged breach of the Act. Having found no statute-based proximity sufficient to found a duty of care owed by the City to farm operators, it is not necessary to proceed to the second branch of the Anns test. [page64 ]

[83] However, if I am wrong, and the second step of the Anns analysis is required to be applied, Cooper v. Hobart recognizes that the existence of an alternate remedy provided by the law is also a relevant fact in considering whether policy considerations exist to negate a prima facie duty of care. In discussing the second stage of the Anns test in Cooper, the Supreme Court of Canada stated, at para. 37:

This brings us to the second stage of the Anns test. As the majority of this Court held in Norsk, at p. 1155, residual policy considerations fall to be considered here. These are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? The fact that there is an administrative tribunal established to determine the issue of whether raising wild boars is a normal farm practice with the right of appeal to the court from decisions of the Board on matters of fact, law or jurisdiction is conclusive that the question of the applicability of a by- law purporting to restrict such activity is, in first instance, a matter for the Board, not the court. The law already provides a remedy for the respondent. An existing remedy is a valid policy reason under the second stage of the Anns test to strike the respondent's claim. More will be said about the Board's procedures and its remedial authority below.

[84] Furthermore, it is recognized that courts generally do not permit overlapping or concurrent jurisdiction between a specialized administrative tribunal and the courts. For example, in Mahar v. Rogers Cablesystems Ltd. (1995), 1995 7129 (ON SC), 25 O.R. (3d) 690, [1995] O.J. No. 3035 (Gen. Div.), Sharpe J. (as he then was), at p. 698 O.R., stated:

[W]here Parliament has created a statutory regime which includes both rights and a procedure for their resolution, there is at the very least a strong reluctance to permit jurisdiction to be divided between the specialized agency or tribunal and the courts or to permit overlapping or concurrent jurisdiction.

[85] Justice Harvison Young is of the view that the case of Pyke v. Tri Gro Enterprises Ltd. (2001), 2001 8581 (ON CA), 55 O.R. (3d) 257, [2001] O.J. No. 3209 (C.A.) stands for the proposition there is nothing in the legislation, express or implied, that ousts the jurisdiction of the Superior Court of Justice to decide whether a particular operation is a "normal farm practice" within the meaning of the statute. In Pyke, the trial judge determined that the activity in question -- growing mushrooms -- was a normal farm practice within the meaning of the Farming and Food Production Protection Act, 1998. The Court of Appeal observed [at para. 54] that "no one takes issue with the trial judge's decision to determine [page65 ]the matter himself". The Court of Appeal acknowledged the unique circumstances in which they thought such determination by the trial judge was appropriate. In para. 54 its decision, the Court of Appeal noted that the issue was not raised before the trial judge at the commencement of trial and had the issue been raised at the commencement of trial, the trial judge might well have left the matters for the Board to determine the trial judge was correct. In Pyke, the Court of Appeal observed [at para. 54]: "the parties had gone to enormous expense to present the case before the court and if the issue were referred to the Board, the evidence would have to be called again, significant delays would be occasioned" and "whether he declined to hear the matter or not, a multiplicity of proceedings appeared to be unavoidable". The Court of Appeal went on to say, at paras. 55-59, as follows:

Although the court's power to issue an injunction prohibiting a farmer from carrying on an agricultural operation that is not a normal farm practice is not in issue on this appeal, I find it important to determine the matter in the context of the issue raised by the intervenor. For reasons that I will set out below, it is my view that the court does retain this jurisdiction under the 1998 Act. Nonetheless, there remains a division of power between the Board and the court that lends much support to the intervenor's position. In my view, absent special circumstances (this case is one example), the question, raised within a nuisance action, of whether a disturbance constitutes a "normal farm practice" should generally be left for the Board to determine and the action should be stayed pending such determination. I find the intervenor's position persuasive for the following reasons.

First, the expertise of the Board is a very important factor. The Board is an administrative tribunal that has been constituted with the particular expertise to achieve the purposes of the legislation. It also has the power to appoint experts to assist it in performing any of its functions: s. 8(3).

Second, the Board's special procedure and non-judicial means available under the legislative scheme to implement its purposes can present litigants with significant advantages over the traditional court system. I note the following. The Board has the general power to inquire into and resolve a dispute respecting an agricultural operation and to determine what constitutes a normal farm practice: s. 4(2)(a). The material before the court demonstrates that the informal procedures that have been put in place have proven quite effective. One consultation paper on the role of the Farm Practices Protection Board dated February 1996 reveals that, on average, the Ontario Ministry of Agriculture, Food and Rural Affairs receives approximately 700 environmentally related complaints annually, yet the Board holds only two hearings per year. The great majority of complaints are otherwise resolved by ministry staff and/or other experts. This is further confirmed in the Ministry's "fact sheet" referred to earlier where it is estimated that only about 1 per cent of the total complaints received by Ministry staff on nuisances covered by the Act actually end in a Board hearing. Even when the matter is not resolved informally and a hearing does take place, it is usually held in local municipalities, the procedure is less formal than court proceedings and, judging from the Board decisions that have been presented to this court, the entire process appears to be more accessible to the unrepresented litigant. [page66 ]

Third, the Board has extensive powers of relief that can, in many cases, be more suitable to the needs of the parties. If the practice is a normal farm practice, there is no difference between the powers of the Board and the court. The Board must dismiss the application and likewise, the court must dismiss the action in nuisance. It is in those cases where the disturbance is not a normal farm practice that the differing powers can become significant.

Of particular significance is the Board's power, where the disturbance is not a normal farm practice, to us require that a farmer implement certain farming techniques and methods to ensure compliance with normal farm practice: s. 5(4)(c). The court does not have such power. Example[s] of remedial orders made by the Board under the earlier statute can be found in the following decisions: Re Youcke v. Hermann (September 29, 1993) 93-01 (F.P.P.B.); and Re Thuss v. Shirley (December 27, 1990) 90-02 (F.P.P.B.). After making an order, the Board retains the power to make the necessary inquiries and orders to ensure compliance with its decisions: s. 4(2). In my respectful opinion, the Pyke case is consistent with Justice Sharpe's statement in Mahar v. Rogers Cablesystems Ltd. [at p. 698 O.R.] that there is "at the very least a strong reluctance to permit jurisdiction to be divided between the specialized agency or tribunal and the courts or to permit overlapping or concurrent jurisdiction". As can be seen from the above excerpt, the Court of Appeal found that whether a particular operation is a "normal farm practice" is a matter which should generally be left for the Board to determine.

[86] In Pyke, the Court of Appeal listed significant policy reasons for its conclusion that generally the Board should determine whether a particular operation is a "normal farm practice". The Court of Appeal noted, in particular, the expertise of the tribunal; the Board's special procedure and non-judicial means available under the legislative scheme to implement its purposes which can present litigants with significant advantages over the traditional court system; and finally, the Board's extensive powers of relief that can, in many cases, be more suitable to the needs of the parties.

[87] The policy reasons articulated by the Court of Appeal in Pyke in support of its conclusion (that the question of whether an operation is a "normal farm practice" is a matter which should generally be left for the Board to determine) reinforce a conclusion under the second stage of the Anns test that there are valid policy reasons to strike the contested elements of the plaintiff's statement of claim in this case. Not only does the law already provide a remedy for the respondent but also the Board's special procedures provide significant advantages to the farmer and the remedial jurisdiction of the Board enables relief to be tailored to the needs of the parties. In this regard, the situation of an operator like Rausch who has access to the Board with its [page67 ]procedural and remedial advantages stands in sharp contrast to the situation of the victim of negligent police investigation in Hill, where, as observed by the Supreme Court of Canada [at para. 35], "existing remedies for wrongful prosecution and conviction are incomplete and may leave a victim of negligent police investigation without legal recourse".

[88] My colleague Justice Harvison Young is of the view that the plaintiff may have a common law cause of action and concludes that it is not plain and obvious that the action cannot succeed. The action as pleaded is based on breach of the Farming and Food Production Protection Act, 1998 and, in my respectful opinion, must be assessed on this basis. However, if she is correct in her conclusion that the circumstances as alleged in this case may give rise to a common law duty of care on the part of the City even in the absence of a statutory duty of care, then, for the reasons given above, I am of the view that such a common law cause of action does not survive the application of the test set out in Anns v. Merton London Borough Council.

Conclusion

[89] In my respectful opinion, the paragraphs in dispute should be struck because it is plain and obvious that a claim based on negligence cannot succeed.

[90] In the result, I would grant the appeal, set aside the order of the learned motion judge and strike paras. 18A, 18B, 18C and 18D of the Amended Amended Statement of Claim without leave to amend.

Costs

[91] The appellant would be entitled to costs of this appeal and the motions below. Based on submissions made before the panel, the costs are fixed in the amount of $7,500, all inclusive.

Appeal dismissed.