COURT FILE NO.: 12-53411
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRAHAM BURN
Plaintiff
– and –
YASMIN AIKMAN, THE COUNTY OF LANARK and THE TOWNSHIP OF BECKWITH
Defendants
Anthony W. Paslat, for the Plaintiff
Mark O. Charron, Lisanne McCullough for the Defendants, The County of Lanark and The Township of Beckwith
HEARD: October 12, 2012
Ruling on motion
Maranger J.
[1] This was a motion pursuant to rule 21 of the Rules of Civil Procedure which allows a judge to strike out a pleading on the ground that it discloses no reasonable cause of action.
[2] The pertinent facts in this case are that on September 26, 2011 a motor vehicle accident occurred when the plaintiff while traveling westbound on County Road 10 in the east region of Ontario collided with a large cow located on the roadway.
[3] The plaintiff commenced an action against Yasmin Aikman claiming that she was the owner of the cow and that she failed to properly confine the cow. The plaintiff also commenced an action against the County of Lanark and the Township of Beckwith claiming that one or both of them failed to ensure that the owner of the cow properly secured the cow on her privately owned land.
[4] The sole issue here is whether or not the statement of claim against the defendants Lanark and Beckwith ought to be struck because it discloses no cause of action.
[5] I would grant the motion in this case and for the following specific reasons:
• The duty of care alleged by the plaintiff in this case is one that has never been recognized in law.
• In examining the foreseeability of harm and the relationship between the parties, I find that there is insufficient proximity between the plaintiff and the Lanark and Beckwith defendants.
• It is not a reasonable proposition to expect that municipalities would patrol roadways to prevent animals from escaping private property or inspect privately owned fences to make sure that animals do not escape onto public roadways. There are laws (in this particular case by-laws) that regulate the responsibility of property owners with respect to allowing animals to stray and it is the animal owner’s responsibility to abide by these laws.
• There are also broad policy considerations against the recognition of the duty of care as claimed by the plaintiff in the circumstances of this case. The creation of a duty of care in this instance would effectively make the municipality an insurer in circumstances where the animal owner does not have sufficient resources to fully compensate the plaintiff for the injuries or damages. It would extend to a variety of domesticated and farm animals and would require the monitoring and regulation of private property in this regard. The costs involved outweigh the potential benefits.
[6] Therefore, the plaintiff's claim and the defendant Aikman’s cross-claim as against the County of Lanark and the Township of Beckwith are both dismissed.
[7] With respect to the issue of costs should the parties fail to agree on the issue, then the moving party will be allowed 10 days to file and serve two pages of written argument on the issue and the responding parties shall have five days thereafter to file two pages of written argument in reply. In the event the court does not hear from counsel during this timeframe then there will be no order as to costs.
Mr. Justice Robert L. Maranger
Released: October 17, 2012
COURT FILE NO.: 12-53411
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GRAHAM BURN
Plaintiff
– and –
YASMIN AIKMAN, THE COUNTY OF LANARK and THE TOWNSHIP OF BECKWITH
Defendants
REASONS FOR JUDGMENT
Maranger J.
Released: October 17, 2012