Court File and Parties

Oshawa Court File No.: 88655/14 Date: April 28, 2017 Ontario Superior Court of Justice

Between: James Rausch, Plaintiff – and – The Corporation of the City of Pickering, Defendant

Counsel: Y. Payne and K. Sanchez, for the Plaintiff S. Zacharias, for the Defendant

Heard: November 16 - 20, 23 - 26, 2015. Written submissions received thereafter. Final written submissions received April 21, 2016.

Salmers J.

Reasons for Judgment

Introduction and Nature of the Action

[1] The plaintiff, James Rausch, claims damages against the defendant, the City of Pickering, for losses that the plaintiff alleges she sustained as a result of certain acts of the defendant in 2006. The plaintiff alleges that Pickering’s acts caused the plaintiff to unnecessarily kill a number of wild boars and caused consequential damages to the plaintiff’s wild boar farming business that she was establishing at the time. The plaintiff claims $5,000,000 for loss of revenue and $1,000,000 for punitive, aggravated and exemplary damages.

[2] The plaintiff alleges that her claims for damages are based on trespass, abuse of process, malicious prosecution, and negligence.

[3] The plaintiff’s written submissions focussed almost exclusively on the claim of negligence. In paragraph 147 of the plaintiff’s written submissions, it is stated that the claims for the intentional torts of trespass, abuse of process, and malicious prosecution were pled by the plaintiff’s previous counsel. Those claims were then very summarily dealt with in only the three final paragraphs of the written submissions. Each of those paragraphs is extremely brief – containing only one sentence per paragraph. The plaintiff has failed to establish any of her claims with respect to the intentional torts. I will briefly address my reasons for dismissing those claims prior to addressing the claim of negligence.

The Claim for Trespass

[4] Trespass to land consists of intentionally entering upon the land of another without legal justification. [1] Trespass in all its forms is actionable per se, i.e., without the need for the plaintiff to prove he has sustained actual damage. [2] However, even where the conduct of a party technically constitutes a trespass, no action will lie in trespass if the damage cause to the other party’s land is so minimal that the maxim de minimis non curat lex applies. [3]

[5] The plaintiff’s claim for trespass is based on events that occurred on February 22, 2006. On that day, three representatives of Pickering attended at the plaintiff’s property.

[6] The background facts are that the plaintiff was raising wild boars on property that she leased in Pickering. Some of the wild boars had gotten loose and a neighbour had complained to the plaintiff’s landlord that the plaintiff’s wild boars had damaged the neighbour’s property. The landlord was concerned that not only did the plaintiff have animals on the property contrary to the terms of the plaintiff’s lease, but that the presence of the animals was also possibly contrary to Pickering’s by-laws. Accordingly, the landlord contacted Pickering.

[7] After Pickering had received the information from the landlord, a Pickering municipal by-law enforcement officer, Mr. Brad Suckling, became involved. He was of the belief that the plaintiff might be in violation of Pickering’s zoning by-law and its exotic animals by-law. On December 7, 2005, Mr. Suckling attended at the property and went to the house located on the property. Nobody responded to a knock on the door. He left his business card and then left the property.

[8] The next attendance of Pickering representatives on the plaintiff’s land occurred on February 22, 2006. On that day, three Pickering representatives went to the plaintiff’s property in response to the concern that had been raised by the property’s landlord. The representatives wished to see and confirm that animals were being kept on the property in order to determine if there were any breaches of the relevant by-laws.

[9] When the three representatives arrived at the plaintiff’s property, they knocked on the door to the house. Nobody answered. The three representatives then walked to the area where there were pens for the animals. They saw the wild boars. They took pictures of the wild boars and pens. The representatives then left the plaintiff’s property.

[10] There was evidence that two Pickering representatives may have attended on the property on or about March 20, 2006 for the purpose of confirming if the wild boars were still on the property. However, one of those representatives, Jason Litoborski, testified that no Pickering representative entered on the property on March 20, 2006.

[11] Pickering’s representatives certainly did not have the plaintiff’s permission to enter on the plaintiff’s land.

[12] However, on both December 7, 2005 and February 22, 2006, Pickering’s representatives attended the property for a legitimate purpose following a genuine concern raised by the property’s landlord. On its own, there may be an argument that Pickering’s representatives entered on the property with justification. However, I do not rely on that possible justification as a basis for dismissing the claim for trespass.

[13] Instead, I base my dismissal of the trespass claim on the fact that there is no evidence of any resulting damage to the property or to anything located on the property, including the wild boars.

[14] Both visits by Pickering representatives on the property were very short in duration. There is no evidence that either attendance lasted more than an hour. The first attendance was probably for only a few minutes. There is no evidence that either entrance on the property interfered with the plaintiff’s use of the property.

[15] Also, there is no evidence of any physical damage whatsoever on December 7, 2005, the day of Mr. Suckling’s first attendance at the property.

[16] With respect to the February 22, 2006 attendance, the plaintiff relies on a single photograph as evidence of physical damage. I reject any submission that damages are proven by that single photo, taken by a Pickering representative, that shows a surprised or, possibly, scared wild boar. The photo is the only evidence of possible fear. On the evidence, I am not satisfied that the animal was scared or that, if scared, a representative of Pickering caused the fear.

[17] In all of the circumstances, I find that the damages, if any, of any “trespass” by the representatives are de minimis and do not form a basis for recovery. Accordingly, the plaintiff’s claim for damages for trespass is dismissed.

The Claims for Abuse of Process and Malicious Prosecution

[18] Four elements must be proven to establish the tort of abuse of process:

a) the plaintiff was the subject of a proceeding initiated by the defendant;

b) the defendant’s predominant purpose in initiating the proceeding was to further some improper purpose collateral to or outside the ambit of the proceeding;

c) the defendant preformed a definite act or threat in furtherance of that improper purpose; and

d) as a result of the impugned proceeding and defendant’s acts, the plaintiff has sustained damages. [4]

[19] To succeed in an action for malicious prosecution, a plaintiff must prove four essential elements:

a) proceedings must have been initiated by the defendant;

b) the proceedings must have terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause for the proceeding; and

d) the proceeding was brought with malice, or a primary purpose other than that of carrying the law into effect. [5]

[20] As can be seen from the law cited above, to establish either abuse of process or malicious prosecution, one of the essential elements that the plaintiff must prove is that Pickering instituted or caused to be instituted proceedings against the plaintiff, for a purpose that is extraneous to those proceedings. There must be evidence must that indicates an ulterior or collateral purpose in order for such torts to be successful. The fact that the compliance letter was sent or that legal proceedings were instituted do not, on their own, lend credibility to claims of abuse of process or malicious prosecution. [6]

[21] In the plaintiff’s written submissions, the plaintiff alleges that Pickering’s conduct was “for the improper and collateral purpose of pressuring a tenant to leave the Property." [7] As stated earlier, the plaintiff’s written submission on abuse of process and malicious prosecution were extremely brief. The plaintiff’s written submissions did not specify what conduct of Pickering was for that “improper and collateral purpose.”

[22] Due to the brevity of the plaintiff’s written submissions, I rely on what is alleged in paragraphs 9 – 17 of the Amended Amended Statement of Claim as the basis for what conduct the Plaintiff is alleging as the basis of the claims for abuse of process and malicious prosecution. In those paragraphs, the plaintiff refers to the following conduct of representatives of Pickering:

• a letter from Pickering dated January 20, 2006. Pickering representatives who testified referred to this letter as a compliance letter, i.e. a letter from the municipality directing that a resident comply with a by-law;
• allegations that representatives of Pickering told the plaintiff that she would be charged and the wild boars would be forcibly removed from her property;
• the fact that Pickering did charge the plaintiff with a by-law violation although Pickering had allegedly advised the plaintiff that she would not be charged if the wild boars were removed from the property; and
• that the by-law charges were laid for the collateral purpose of attempting to remove the plaintiff from the property.

[23] All of the Pickering representatives testified that they never told the plaintiff that her wild boars would be forcibly removed from the property. The Pickering representatives testified that they did not know of any authorization in Pickering’s by-laws that would have enabled them to remove the wild boars from the property. All of the Pickering representatives who testified were not materially challenged on this issue. I am not satisfied that any Pickering representative ever told the plaintiff that her wild boars would be forcibly removed from the property.

[24] The January 20, 2006 compliance letter was sent by Pickering and by-law charges were laid. However, apart from the speculation of the plaintiff, there was no evidence that Pickering wanted to remove the plaintiff from the property on which she resided and carried out her wild boar business. The only evidence was that Pickering wanted the plaintiff to remove her wild boars from the property because Pickering genuinely believed that its zoning by-law and exotic animal by-law were being breached by the plaintiff keeping the animals on the property. There was no evidence that Pickering’s conduct was for any other purpose.

[25] There was some evidence that some Pickering representatives may have spoken of “getting” the plaintiff. I find that what the Pickering representatives wanted was to pressure the plaintiff to remove the wild boars from the property because the representatives believed that a by-law was being contravened by keeping the wild boars on the property. There was no evidence that Pickering wanted to pressure the plaintiff to force her or her family to move from the property.

[26] Accordingly, the plaintiff has not established that Pickering’s conduct was for the improper purpose of pressuring the plaintiff to leave her property or for any other improper ulterior or collateral purpose. Therefore, the plaintiff’s claims of abuse of process and malicious prosecution are dismissed.

[27] In any event, as will be expounded later in these reasons, the plaintiff has not proven that Pickering’s conduct has caused her to suffer damages, including with respect to the malicious prosecution and abuse of process claims.

[28] The plaintiff has not established either abuse of process or malicious prosecution. However, even if she had established either abuse of process or malicious prosecution, the only recoverable damages would have been for her legal costs incurred in response to the January 20, 2006 compliance letter and to fight the by-law infraction charges. There was little, if any, evidence to enable me to determine the amount, if any, of those legal costs. For the most part, or perhaps entirely, the plaintiff chose not to consult legal counsel either in response to the January 20, 2006 compliance letter or to fight the by-law infraction charges. For reasons to be stated later when discussing the negligence claim, the plaintiff has not proven that she suffered any other damages as a result of Pickering’s conduct.

The Claim of Negligence

[29] In this case, the plaintiff alleges that she was forced to kill a large number of her herd of wild boars after receipt of the January 20, 2006 compliance letter. The plaintiff alleges negligence of Pickering in sending the letter. The plaintiff alleges that as a result of the Pickering’s negligence, she has sustained damages for the loss of animals that she killed, damages of $5,000,000 for loss of revenue of her wild boar business, and $1,000,000 for punitive, aggravated, and exemplary damages.

[30] The plaintiff’s pleading of negligence is set out in paragraphs 18A – 18D of her Amended Amended statement of Claim. Essentially, relying on s. 6 of the Farming and Food Production Act, [8] (FFPPA), the plaintiff pleads that the relevant Pickering by-laws were not applicable to her wild boar operation. [9] Accordingly, the plaintiff alleges that Pickering was negligent in sending her the compliance letter and in commencing a by-law enforcement prosecution. Based on the pleadings and the plaintiff’s written submissions, it appears that the plaintiff is alleging that, prior to sending the compliance letter and prior to commencing a by-law enforcement prosecution, Pickering representatives did not act reasonably and in accordance with the duty and standard of care owed by them to the plaintiff.

[31] To prove negligence, a plaintiff must establish:

1. that the defendant owed a duty of care to the plaintiff;

2. that the defendant’s conduct fell below what could be expected of the ordinary reasonable and prudent person in the circumstances; and

3. that the plaintiff suffered damages as a consequence of the defendant’s breach of the standard of care.

The Duty of Care

[32] In the earlier Court of Appeal decision on this matter, the court stated,

“In my view, no compelling reason has been shown to negate a prima facie common law duty of care. I therefore conclude that the City may owe Mr. Rausch a common law duty of care to exercise its considerable powers over farmers in a manner that reduces risk of unwarranted harm.” [10]

[33] In Pickering’s written submissions, there is no dispute that Pickering owed a duty of care to the plaintiff. However, Pickering submits that there is no evidence of the standard of care necessary to discharge that duty.

The Standard of Care

[34] In paragraphs 87 – 90 of its earlier ruling, the Court of Appeal stated the following with respect to the standard of care:

87 The approach to determining the standard of care in these circumstances would be to assess what a reasonable by-law enforcement officer would have done in considering whether to enforce the by-law against Mr. Rausch. It is at this stage of the analysis that the court must define the conduct required to satisfy this standard, bearing in mind that the FFPPA imposes no obligation on the City to apply to the Board for a determination as to whether a targeted farming operation is a "normal farm practice".

88 Municipalities are presumed to know the law: Boundary Bay Conservation Committee v. British Columbia (Agricultural Land Commission), 2008 BCSC 946, [2008] B.C.J. No. 1369, at para. 71. Further, this court has held that enforcement officers are obliged to (i) act in good faith in relation to their decisions as to how a by-law will be enforced, and (ii) act with reasonable care in any steps they take to enforce a by-law: Foley v. Shamess, 2008 ONCA 588, 297 D.L.R. (4th) 287, at para. 29; see also Butterman v. Richmond (City), 2013 BCSC 423, [2013] B.C.J. No. 461, at para. 38. The combination of these two factors - presumed knowledge of the law and an obligation to act reasonably and in good faith in enforcing it - and the wording of s. 444 of the Municipal Act mentioned above, may be relevant to the determination of the standard of care. Specifically, it may permit a finding that when attending at Mr. Rausch's premises and observing livestock in circumstances that appeared farm-like, the by-law enforcement officer ought to have considered the implications of the FFPPA before proceeding with enforcement steps.

89 As already discussed, the question of the type of conduct necessary to meet the standard of care is a matter for trial as it is a fact-driven assessment. In Ryan, at para. 28, the Supreme Court stated that when determining the conduct required to satisfy the standard of care, courts must consider the likelihood of a known or foreseeable harm occurring, the gravity of that harm and the cost that the defendant would incur in preventing the harm. Here, relevant factors that might be raised include the ease with which the foreseeable risks may have been avoided (i.e. by informing Mr. Rausch of the opportunity to seek judicial review or apply to the Board); the relevant policy decisions of the municipality with respect to by-law enforcement; and the City's internal standards, guidelines or directives pertaining to the enforcement of by-laws.

90 I emphasize that it is both for the sake of completeness and to respond to the City's concern that recognizing a duty may conflict with the FFPPA that imposes no duty on the City to seek a determination of the Board that I have briefly addressed the standard of care. [11]

[35] Accordingly, it remains for me, as the trial judge, to determine what conduct was reasonable, in all of the circumstances, in order to observe the standard of care. [12]

[36] A by-law enforcement officer is presumed to have knowledge of the law. In 2005 and 2006, for by-law enforcement officers who were dealing with farm properties, that law included FFPPA. At the relevant times, s. 6(1) of FFPPA was as follows:

“No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.”

[37] Accordingly, provided that a person was carrying on “a normal farm practice carried on as part of an agricultural operation,” that person may not have been in contravention of any Pickering by-law.

[38] There was evidence of farming, including the raising of animals, taking place on other properties in Pickering. Therefore, FFPPA was a very important law for the relevant Pickering representatives and employees to have known and consider when they were determining whether compliance or enforcement steps were to be taken.

[39] There was no evidence about customs, practice, guidelines, or standards of FFPPA training for by-law enforcement officers and other municipal employees and representatives in other municipalities. However, the cost of training by-law officers about FFPPA would be rather minor compared to: 1) the cost of municipalities prosecuting and citizens defending enforcements of by-law contraventions; and 2) the potential economic damages that a citizen might suffer.

[40] Balancing all of these factors, I find that in order for Pickering’s by-law enforcement officers to know the law and act with reasonable care when taking steps to enforce by-laws, Pickering should have trained its by-law enforcement officers about FFPPA and its applicability when considering whether by-law compliance or enforcement steps were necessary. When investigating a complaint of a possible by-law contravention, the standard of care was that a reasonable by-law enforcement officer would have considered whether FFPPA exempted the impugned conduct.

[41] When Pickering representatives were advised about the possible presence of wild boars on the plaintiff’s property, the evidence is that the involved Pickering representatives thought only about whether the presence of wild boars was a contravention of Pickering’s by-laws. The evidence is that none of the involved Pickering representatives considered the impact of FFPPA when determining whether the plaintiff was contravening a by-law.

[42] Brad Suckling was a municipal law enforcement officer with Pickering in 2005 and 2006. He wrote and signed the January 20, 2006 compliance letter that was sent to and received by the plaintiff. He testified about the steps that he took before writing and sending the letter. Those steps did not include consideration of the impact of FFPPA. Mr. Suckling testified that at the time that he wrote and sent the compliance letter, he had not heard of and was unaware of FFPPA and that he had received no training about FFPPA or about wild boars. Mr. Suckling was not involved in the later by-law enforcement charge.

[43] In 2005 and 2006, Kim Thompson was Pickering’s manager of by-law enforcement. She testified that she reviewed the compliance letter before it was sent. She also testified that, at least at the relevant times, Pickering did not provide training for municipal law enforcement officers about wild boars or FFPPA.

[44] Lindsey Brenner Narraway became Pickering’s Supervisor of Animal Services in December 2005. The Department of Animal Services became operational in January 2006. Ms. Narraway testified that she had no involvement in and was not aware of Pickering’s dealings with the plaintiff at the time that the compliance letter was sent. Ms. Narraway attended at the plaintiff’s property on February 22, 2006 to identify the animals and confirm whether there was a by-law contravention. Prior to that date, she had no training about FFPPA or the identification of exotic animals. In March 2006, after it was confirmed that there were still wild boars on the property, she was involved in the decision to lay a by-law contravention charge against the plaintiff. She admitted that she was not familiar with FFPPA when that decision was made.

[45] Rhonda Bishop was the Provincial Offences Act prosecutor for Pickering in 2006. In May 2006, she swore the information that commenced the by-law contravention charge proceeding against the plaintiff. Ms. Bishop testified that, at the relevant times, she was not familiar with FFPPA and she had not received any training with respect to wild boars, livestock, or exotic animals. She also testified that she could not recall laying any charge under Pickering’s animal control by-law prior to July 17, 2006.

[46] There was no evidence that other Pickering employees or representatives were involved in the decision to send the compliance letter or the decision to lay the by-law contravention charge.

[47] With respect to both the decision to send the compliance letter and the decision to commence the by-law contravention prosecution, the evidence is that none of the relevant involved Pickering employees or representatives considered the implications of FFPPA. The evidence is that, at the relevant times, none of those relevant involved employees or representatives were aware of FFPPA or had training with respect to FFPPA, exotic animals, or, in particular, wild boars. Accordingly, the relevant Pickering officers did not observe the standard of care when they sent the compliance letter and when they commenced the by-law contravention prosecution.

[48] I do not find any evidence of bad faith on the part of the involved Pickering employees or representatives. However, there were deficiencies in their training. There was evidence of farming, including the raising of animals, taking place on other properties in Pickering. The relevant employees and representatives should have had training about FFPPA. If they had such training, the employees and representatives would have realized that they had to consider whether the plaintiff’s wild boar farm was caught under the umbrella of “a normal farm practice carried on as part of an agricultural operation” of s. 6 of FFPPA and, therefore, exempted from restrictions imposed by Pickering by-laws. It was unreasonable for Pickering not to have provided such training to the employees and representatives who were involved in the investigation of possible by-law contraventions where farms were involved. The failure of Pickering to provide such training led to the negligent conduct of its employees and representatives, specifically their failure to consider whether the plaintiff’s wild boar farm was exempted from compliance with restrictions that might be imposed on the farm by Pickering by-laws.

[49] Pickering owed a duty of care to the plaintiff. I have found that Pickering (through its employees and representatives) breached the standard of care that was required to be observed. Accordingly, I will proceed to consider damages.

Damages

[50] To establish negligence, a plaintiff must prove that he/she sustained damages because of the defendant’s conduct that breached the standard of care. The test for causation is that the plaintiff’s damages would not have been sustained but for the impugned conduct of the defendant.

[51] The plaintiff alleges that she was forced to kill a large number of her wild boars after receipt of the January 20, 2006 compliance letter. The plaintiff alleges negligence of Pickering in sending the letter. The plaintiff alleges that as a result of Pickering’s negligence, she has sustained: a) damages for the loss of animals that she killed; b) damages of $5,000,000 for loss of revenue of her wild boar business; and c) $1,000,000 for punitive, aggravated, and exemplary damages.

[52] In the earlier Court of Appeal decision on this matter, the court stated that reasonably foreseeable harm could result [13] if a municipality negligently took steps to enforce its by-laws. [14] The Court of Appeal also stated, “Based on the City’s insistence that he had violated the by-law and in reliance on its jurisdiction to enforce compliance, Mr. Rausch took steps that caused him to lose his animals, his business and his investment of considerable time and money.” [15] In these circumstances, the “but for” test has been met. The plaintiff’s damages were sustained because of Pickering’s conduct. However, as in all instances of tort, the plaintiff was expected to mitigate her damages by acting reasonably. Obviously, all of the trial evidence was not before the Court of Appeal. Based on the trial evidence, I find that the plaintiff did not act reasonably by killing the wild boars as she did.

[53] The plaintiff’s theory of causation of damages is that Pickering’s negligence in sending the January 20, 2006 compliance letter and subsequent conduct of Pickering employees and/or representatives caused the plaintiff to believe that her wild boars would be impounded if the plaintiff failed to remove the boars from the property. The plaintiff testified that she believed that she could not afford the impoundment fees. Accordingly, the plaintiff felt that she had no choice but to destroy her animals and has suffered the damages that she alleges.

[54] The plaintiff called an expert witness, Alfred Boutin, who testified that it would be reasonable to kill animals if a person received a notice with a 10 day deadline and believed that the animals would be impounded and with high fees being payable. Pickering called an expert witness, Fred DeMartines, who testified that most farmers would not have killed the wild boars as the plaintiff did. As Mr. DeMartines testified, most farmers would have tried to keep the wild boars alive and would have killed them only if there was something terribly wrong with the animal. Mr. Boutin testified from the viewpoint of a farmer who primarily bred wild boars for the purpose of having them available for hunters who paid to hunt them on his farm. Mr. DeMartines testified from the viewpoint of a farmer who breeds wild boars for the purpose of selling them or their meat. This was the purpose of the plaintiff. Further, during cross-examination, Mr. Boutin essentially agreed with Mr. DeMartines and testified that it was better to try just about anything before killing animals. Accordingly, I prefer and accept the opinion of Mr. DeMartines.

[55] The plaintiff testified that, after she received the compliance letter and following communications with Pickering employees and representatives, she felt that she had no alternative other than to destroy her herd of wild boars. For the following reasons: 1) I do not find that it was reasonable for the plaintiff to have held that belief; and 2) her explanation is not borne out by the facts as, by her own evidence, the plaintiff did not destroy all of the wild boars in her herd.

[56] The plaintiff testified that she regards wild boars as pigs. She testified that prior to commencing her wild boar operation, she phoned Pickering to ask if she could raise pigs. She testified that she was told that it was no problem. She testified that she never received anything in writing. She could not remember the name of the person to whom she spoke. She testified that it was “a Chinese lady.” Based on that information, the plaintiff began her wild boar operation.

[57] The compliance letter was sent by Pickering to the plaintiff on January 20, 2006.

[58] The first paragraph of the compliance letter states that Pickering “has received a complaint regarding the keeping of Wild Boars at your residence.” The first paragraph then states that Pickering is writing “to request your compliance with” two specific Pickering by-laws. The second and third paragraphs of the compliance letter briefly state excerpts from the two Pickering by-laws. The fourth paragraph of the compliance letter states, “The above stated section would require you to remove your boars from the property to be in compliance. I am setting a compliance date of February 1, 2006. Failure to comply by this date may result in legal action.”

[59] After receiving the compliance letter, the plaintiff had communications with Brad Suckling, the Pickering municipal law enforcement officer who was the author of the compliance letter. The plaintiff testified that in an effort to change Mr. Suckling’s mind, she tried to persuade him that the wild boars were alternative livestock or farm animals and, therefore, did not come under the ambit of the by-laws referred to in the compliance letter. The plaintiff also testified that for the same purpose, she tried to persuade Mr. Suckling to contact Brian Tapscott, an Ontario government employee knowledgeable about agriculture. She testified that she could not change Mr. Suckling’s mind. The plaintiff also testified that she told Mr. Suckling that she would be unable to remove the animals in the winter and that she did not want to have to shoot the animals. She testified that Mr. Suckling said that he did not care if she had to shoot the animals; that he just wanted her to get rid of them.

[60] The plaintiff testified that she tried to find alternative accommodation for the wild boars, but was unable to do so before February 1, 2006.

[61] The plaintiff testified that Mr. Suckling told her that if the wild boars were not removed from the property, Pickering would impound the boars and the plaintiff would have to pay the costs of impoundment.

[62] The plaintiff testified that she could not have paid the costs of impoundment and, therefore, in all the circumstances, she felt that she had no choice but to destroy her herd of wild boars. Accordingly, she commenced to do so.

[63] In general, I had numerous difficulties with the plaintiff’s testimony. Many of those difficulties were specific to the plaintiff’s testimony about her concerns, beliefs, and actions following her receipt of the compliance letter.

[64] There were inconsistencies between the plaintiff’s testimony and her examination for discovery. There were also inconsistencies within her testimony. Many inconsistencies concerned her actions after receipt of the January 20, 2006 compliance letter. One inconsistency was about whether she contacted a legal advisor after receiving the compliance letter. There were inconsistencies about whether after receipt of the compliance letter, she tried to call anybody other than an Ontario government official. She was inconsistent and vague about her efforts, if any, to find a location where she could move and store the wild boars. There were numerous inconsistencies about the number of wild boars in her herd before she began killing them. There were multiple inconsistencies about the number, sex, and age of the wild boars that she killed. There were inconsistencies about when she started killing her wild boars and how long she continued doing so. There were inconsistencies about the number of wild boars that were left after she stopped the killing. Additionally, there were many other inconsistencies about her actions and beliefs following receipt of the compliance letter and during her testimony in general.

[65] At times, the plaintiff was evasive. Sometimes the plaintiff changed her testimony when an inconsistency became apparent. For example, she was evasive about whether after receipt of the compliance letter, a Pickering official contacted her about impounding the wild boars. Eventually, she testified that nobody from Pickering contacted her saying that arrangements had been made to impound her animals. There were numerous other times when she was also evasive.

[66] The plaintiff often had difficulties in remembering events and changed her testimony when inconsistencies became apparent or she became confused. The plaintiff admitted to not being a precise person to whom details were important.

[67] Also, it just did not make sense for the plaintiff to repeatedly state that she felt that she had to destroy her wild boars, but then she gave no reason why she failed to kill the entire herd of her wild boars. She offered no explanation as to why she did not kill all of the wild boars.

[68] For those reasons, I have significant difficulties with the plaintiff’s credibility and the reliability of her testimony in general. Those difficulties applied to all of her testimony, but were also specific to the credibility and reliability of her testimony about her concerns, beliefs, and actions following her receipt of the compliance letter and communications with Pickering employees and representatives before she began killing her wild boars.

[69] Brad Suckling testified that he may have told the plaintiff that if she did not bring her property into compliance with the by-laws by removing the wild boars, then charges may be brought and the plaintiff might be fined. Mr. Suckling also testified that he never told the plaintiff that the municipality was out to “get” her or that her animals would be seized and impounded. He testified that he would not have done so because he knew that the plaintiff’s wild boars were on her property and he knew that the Pickering by-law only provided for impounding animals that were at large, that is off their owner’s property.

[70] Mr. Suckling also testified that, as with all investigations of complaints, his sole purpose with the plaintiff was to work with her towards obtaining compliance with the by-law.

[71] Mr. Suckling testified that he never spoke to the plaintiff about impoundment of her wild boars. However, he recalls speaking to the plaintiff about fines that could be imposed for non-compliance with by-laws.

[72] Mr. Suckling’s testimony was not without problem. There were inconsistencies about his research prior to sending the compliance letter. There was inconsistency with his examination for discovery when he was asked questions about his knowledge of alternative livestock. However, he was not shaken in his testimony that he never told the plaintiff that her wild boars would be impounded. I found Mr. Suckling’s testimony to be much more credible and reliable than the plaintiff’s testimony.

[73] Kim Thompson was Pickering’s manager of by-law enforcement at all relevant times and continued as such until the trial. In her testimony, she confirmed that in 2005-2006, and continuing to the date of trial, Pickering could not impound a person’s animals if the animals were on the person’s property. Ms. Thompson’s testimony was given in a very matter-of-fact manner. I found her to be very credible. I believe her.

[74] As discussed above, Pickering’s supervisor of animal services, Lindsey Narraway, was not aware of the issue about the plaintiff’s wild boars at the time that the compliance letter was sent. Ms. Narraway did have some involvement after the letter was sent. However, Ms. Narraway testified that she never considered impounding the wild boars because they were not running at large or intruding on other property.

[75] Ms. Thompson and Ms. Narraway were very credible witnesses. Their evidence, that impoundment was not an option available to Pickering at the relevant times, was reasonable and consistent both internally and externally.

[76] The plaintiff’s theory of causation is premised on proof of the fact that she believed that Pickering would impound her animals if she did not remove them from the property. There was nothing in the compliance letter that suggested the plaintiff’s wild boars would be impounded or taken if the plaintiff failed to bring her property in compliance with Pickering by-laws as requested in the compliance letter. Further, based on my consideration of all of the evidence and the credibility and reliability of the witnesses, I find that, prior to the plaintiff commencing to kill her wild boars, the plaintiff was never advised by any Pickering employee or representative that the plaintiff’s wild boars would be impounded or taken if the plaintiff failed to bring her property in compliance as requested in the compliance letter. The plaintiff was mistaken or untruthful those times that she testified that she had been told of impoundment by Pickering employees or representatives. That lessens her credibility and reliability.

[77] Also, the plaintiff began killing her wild boars shortly before or almost immediately after February 1, 2006, only 10 days after receiving the compliance letter. Although she had carrying on the wild boar operation for 10 years and had earned some income in the past from it, the plaintiff had never reflected any aspect of the business on income tax returns. She was effectively hiding the business from all government and taxation authorities. This raises multiple concerns. Firstly, the plaintiff’s credibility is lessened by the fact that she hid her business in this manner. Secondly, for many reasonable people, if they were accustomed to conducting business in this “under the table” manner for so long, it would not be reasonable for them to react so quickly and so irreversibly by killing the wild boars as she did. Many reasonable persons, in the position of the plaintiff would have done much more than the plaintiff did to extend the time and search for a solution to the problem. Finally, it may also have been the case that the plaintiff took the drastic step of killing her wild boars in order to avoid further attention and investigation into her business, which was not reported to the CRA.

[78] In addition, the plaintiff testified that from the outset she believed that her wild boar operation was not in contravention with the law, including Pickering by-laws. It was unreasonable for a person holding such a belief, to act so quickly and irreversibly without engaging in a more extended battle with the municipality or obtaining legal advice as to the correctness of her position.

[79] Further, the plaintiff did not destroy her entire herd of wild boars and she provided no reason as to why she did not do so. Obviously, she had some second thoughts about the correctness of her decision to kill the wild boars.

[80] I will briefly summarize some of what I have found above. After receipt of the compliance letter and having some communications with Pickering employees and representatives, the plaintiff may have felt that her wild boar business was at risk. But, Pickering and its employees and representatives did nothing that should have caused the plaintiff to fear that her animals would be impounded at high cost to her. It was without basis and unreasonable for the plaintiff to fear impoundment and exorbitant fees. Additionally, based on the paucity or evidence and vagueness about her efforts to find alternate accommodation for her animals, I am not satisfied that the plaintiff made reasonable efforts to find such alternate accommodation. Further, based on the expert evidence that I prefer, the plaintiff should not have killed the wild boars as she did and she should have tried much harder to resolve the by-law dispute before resorting to the last option of killing the animals. The plaintiff acted rashly, precipitously, and unreasonably in proceeding to kill the wild boars as she did. The plaintiff’s own conduct of not killing all of the wild boars demonstrates that she had second thoughts about the correctness of her course of action.

[81] It may be that but for Pickering sending the compliance letter and the plaintiff’s subsequent communication with Pickering employees and representatives, the plaintiff would not have killed the wild boars and almost destroyed her wild boar operation. However, for the reasons that I have written, I reiterate and find that the plaintiff acted unreasonably in killing her wild boars as she did. Further, due to the correctness of her position about the legality of her wild boar operation, I find that if the plaintiff had not acted as she did, all loss would have been avoided that may have been attributable to the compliance letter and the plaintiff’s subsequent communications with Pickering employees and representatives. The plaintiff sustained loss because of her unreasonable behaviour following receipt of the compliance letter.

[82] Even if it was reasonable for the plaintiff to kill her wild boars, for the following reasons, the plaintiff has not proven damages.

[83] The plaintiff testified that her records of the wild boars were kept on a computer that has now been lost. The plaintiff offered no contemporaneous documentary evidence about the number of boars in her wild boar farming businesses – either before or after she killed her wild boars. None of her income tax records include any information about her wild boar farming business. As stated above, the plaintiff’s own testimony was very inconsistent about the number of wild boars in her farming operation and, in particular, about the number, sex, and size of wild boars that she killed after receiving the Pickering compliance letter. On the evidence, the plaintiff has not proven the number, sex, or size of the wild boars that she killed. Even if it had been reasonable for her to kill her wild boars, the plaintiff has not proven damages for the wild boars that she killed.

[84] The plaintiff is also claiming damages of $5,000,000 for loss of revenue of her wild boar business. The theory of this head of damages is that if the plaintiff had not been forced to kill her wild boars, she would have continued to develop her wild boar business until it had 120 sows. David Yabrov, an expert in quantification of damages, testified about the damages for loss of revenue sustained by the plaintiff. Mr. Yabrov’s evidence was that because the plaintiff was forced to kill her wild boars in February 2006, the plaintiff has sustained a total economic loss of $1,955,000. For the following reasons, I have significant difficulties with the reliability and accuracy of Mr. Yabrov’s report and his testimony.

[85] Most importantly, Mr. Yabrov’s evidence was based to a very large degree on information provided to him by the plaintiff.

[86] As stated above, there are numerous reasons to question the general credibility and reliability of information provided by the plaintiff.

[87] Another significant problem is that Mr. Yabrov’s report was based on information and projections of results of operations that were prepared by the plaintiff. The evidence does not support a finding that the plaintiff provided accurate information to Mr. Yabrov or that the plaintiff was capable of achieving the projections that she provided to Mr. Yabrov.

[88] Mr. Yabrov based his opinion and evidence on the number, sex, size and age of wild boars present on the premises in December, 2005. The plaintiff provided that information to Mr. Yabrov. As stated earlier, there were multiple inconsistencies in the plaintiff’s testimony about this information. At different places in his report, Mr. Yabrov states that the plaintiff reported having six or seven or 19 sows in December 2005. [16] For those reasons, I am not satisfied that Mr. Yabrov based his opinion on the correct baseline information about the number, sex, size and age of wild boars present on the premises in December, 2005. Accordingly, his opinion is flawed from the outset.

[89] Additionally, the projections utilized by Mr. Yabrov are of very questionable accuracy.

[90] For example, Mr. Yabrov’s evidence was that the plaintiff’s operation had six or seven impregnated sows, or 19 sows in December 2005, and that but for Pickering’s conduct, the operation would have had 66 sows by 2010. The projection was an increase from six or seven sows, or 19 sows, to 66 sows in no more than 5 years. That is a vastly greater increase in the number of sows than was actually obtained by the operation as evidenced by two actual operation periods. According to the plaintiff’s information provided to Mr. Yabrov, in over eight years, between the commencement of the operation in 1997 until December 2005, the operation had increased only to six sows. Another example is based on the actual operation of the plaintiff’s wild boar farm from February 2006 until September 2010. The plaintiff informed Mr. Yabrov that in January or February 2006 she killed most of her herd of wild boars of which there were six or seven (or 19) sows in December 2005. In September 2010, five years later, the plaintiff advised Mr. Yabrov that there were only five sows. Again, the projection is vastly greater than what actually occurred during the plaintiff’s operation of her wild boar business.

[91] Mr. Yabrov’s opinions about projected loss of revenues are also vastly higher than would be consistent with the plaintiff’s actual operation of her wild boar business. The plaintiff kept virtually no records of her business prior to February 2006. Her income tax returns do not indicate any wild boar business activity whatsoever during that period. The plaintiff did not adduce any evidence of her income since February 2006. Mr. Yabrov testified that he was unaware of any wild boar farmer who earned the amount of money that his report and evidence suggested the plaintiff would have made in the time period 2011 – 2015. On the evidence, the plaintiff has not satisfied me on a balance of probabilities that she could possibly have earned income from her wild boar operation at anything near the level of income projected by Mr. Yabrov. Based on the evidence, I find that the plaintiff’s income from her wild boar operation would always have been at a very low level, barely above subsistence level, if even that high. In any event, the plaintiff has not satisfied me that the revenue losses opined by Mr. Yabrov are realistic and they certainly have not been proven as damages of the plaintiff arising from Pickering’s conduct.

[92] As stated earlier, the plaintiff is not entitled to damages because her losses were sustained due to her unreasonable behaviour following receipt of the compliance letter. However, even if that were not the case, then for the reasons that I have just stated, I would not accept Mr. Yabrov’s opinion as accurately proving the losses of the plaintiff and, on the totality of the evidence, I would not find that the plaintiff had proven damages arising from Pickering’s conduct.

[93] For those reasons, on all of the evidence, the plaintiff has not proven damages for the wild boars that she killed or the consequential loss of income and assets. In those circumstances, Pickering would not be liable for punitive, aggravated, and/or exemplary damages. However, even if the plaintiff had proven damages for the wild boars that she killed and/or consequential damages, I find that the conduct of Pickering’s employees and representatives was not in bad faith and was not of such character to have warranted an award of punitive, aggravated, and exemplary damages.

[94] With respect to the plaintiff’s claims for abuse of process and malicious prosecution, I have already stated why those claims have not been proven. However, if either claim had been proven, then for the same reasons that I have just stated with respect to the damages for negligence, I would have found that the plaintiff had not proven damages for the claims of abuse of process or malicious prosecution.

Summary

[95] For the reasons stated above:

i) the plaintiff has not proven her claims for abuse of process and malicious prosecution and those claims are dismissed. If either claim had been proven, the plaintiff would have been entitled to damages for legal costs incurred, but there was no evidence of such legal costs. If either claim had been proven, other damages for the killed wild boars and consequential loss of assets and revenue may have been recovered, but such damages were not proven;

ii) trespass has been proven, but the damages, if any, of any trespass by the representatives are de minimis and do not form a basis for recovery and, accordingly, the plaintiff’s claim for damages for trespass is dismissed; and

iii) the plaintiff has proven negligence of Pickering, but reasonable conduct of the plaintiff would have avoided all loss. Accordingly, the claim for negligence fails and is dismissed. If the plaintiff’s conduct had been reasonable, then the plaintiff may have been entitled to damages for the killed wild boars and consequential loss of assets and revenues, but such damages were not proven.

[96] If the parties cannot agree on costs, then they are to contact the Oshawa trial coordinator to schedule a costs hearing before me.

Salmers J.

Released: April 28, 2017

[1] G.H.L. Fridman, The Law of Torts in Canada, 2nd ed., (Toronto: Carswell, 2002) at p. 37.

[2] Fridman, at p. 33, citing Bank of Nova Scotia v. Dunphy Leasing Enterprises Ltd., 1991 ABCA 351, 120 A.R. 241, reversing, 105 A.R. 161, affirmed , [1994] 1 S.C.R. 552.

[3] Fridman, at p. 40.

[4] Magno et al v. Lariviere et al, 2014 ONSC 705, at para. 24; Smith v. Rusk, 2009 BCCA 96, at para. 35.

[5] Nelles v. Ontario, [1989] 2 S.C.R. 170 at page 193.

[6] Clarington (Municipality) v. Valliere, 1995 CarswellOnt 613.

[7] Plaintiff’s Written Submissions, para. 148.

[8] S.O. 1998, c. 1, as amended.

[9] The plaintiff is referred to in the masculine in the pleadings and previous court decisions on this matter. However, at trial, the plaintiff presented as a woman and everybody referred to the plaintiff as a woman. Accordingly, throughout these reasons, consistent with the trial, I have referred to the plaintiff in the feminine.

[10] Rausch v. Pickering (City), 2013 ONCA 740, at para. 84.

[11] ibid, at paras 87 – 90.

[12] Galaske v. O’Donnell, [1994] 1 S.C.R. 359 at pp. 286 – 287.

[13] Emphasis added.

[14] Rausch v. Pickering (City), 2013 ONCA 740, at para. 83.

[15] ibid, at para. 60.

[16] Exhibit 26, Yabrov report, pp. 2, 3, and 5.