Ontario Superior Court of Justice

Court File No.: CV-22-374-00
Date: 2025-04-28
Released: April 28, 2025
Heard: March 14, 2025, In Person

Between:
Ryan Ouderkirk, Plaintiff
and
Walkhavern Farms Limited, Collin Walker and Maud Walker, Defendants

Appearances:

Lawson Hennick for the Plaintiff
Ryan D. Truax for the Defendants

Decision from Motion for Summary Judgment
Justice P.W. Sutherland

Overview

[1] The defendants bring a summary judgment motion seeking a dismissal of the action. The defendants contend that there are no issues requiring a trial.

[2] For the reasons to follow, I grant the summary judgment requested by the defendants.

Factual Background

[3] The plaintiff was the driver of a motor vehicle that struck a steer on County Road 42 in Stayner, Ontario. The accident occurred on March 30, 2020, at around 9:00 p.m. The steer was the property of the defendant, Walkhavern Farms Limited (Walkhavern or the Farm), which is owned by the defendants, Collin Walker and Maud Walker. Walkhavern is operated by Collin Walker (Collin) and his spouse, Tanya Anne Walker (Tanya).

[4] Walkhavern is a family farm that has been in the Walker family for generations.

[5] The pasture on the farm where the steer was located was purchased around 2018 and had a paiged wire fencing system already installed. The fence system was not replaced. The fence is maintained and constantly inspected to repair any damaged areas.

[6] Every spring before putting the cattle in the pasture, the fence is inspected and is repaired which includes lifting the paige wire back into place with a staple nail. The posts are also inspected to confirm that they are stable and in good condition. The top of the paige wire fence is at least four feet off the ground and the bottom around two feet from the ground.

[7] On the day of the accident, the farm team moved five cattle to the two-acre pasture. Prior to moving the cattle, the pasture fence was inspected and the paige wire fence, if required, was lifted back into place. The cattle were moved around 9:00 a.m. that morning.

[8] To confirm that the moved cattle were comfortable in the new environment, they were inspected throughout the day. Collin and Tanya observed the cattle from 9:00 a.m. to 10:30 a.m. and went back around 11:00 a.m. and stayed for around 40 minutes. They went back again around 5:00 p.m. and stayed for around an hour. This was the last visit of the day. They had no concerns that the cattle were not content: they had their ears and tails down and their heads-up grazing.

[9] Sometime after 6:00 p.m., the steer escaped and found his way onto County Road 42, roughly 1000 feet from his home, one farm north of the pasture, near Airport Road.

[10] The Occurrence Report indicates that the steer was in the middle of the road and was hit by the vehicle driven by the plaintiff. The steer was removed from the road by Collin and his son. The plaintiff took a taxi back to Brampton.

[11] After the steer was removed, Collin investigated the fence and determined that there was nothing wrong with it. There were no gaps nor was the fence pushed down. Collin surmised that the steer may have jumped the fence after being spooked, perhaps by wildlife.

[12] Collin and Tanya deposed that this was the first time that one of their cattle escaped from the pasture and one has not escaped since the accident.

The Pleadings and the Proceeding

[13] The Statement of Claim (the “Claim”) was issued on March 22, 2022. The action was defended.

[14] The Claim pleads that the accident was caused due to negligence and breach of the defendant’s duty of care. The Claim also relies on the Occupiers’ Liability Act. The particulars of the negligence and breach of duty of care are that the defendants:

(a) failed to confine the livestock/cow to the Farm;
(b) permitted the livestock/Cow to escape from the Farm when they knew or ought to have known that the livestock/Cow could escape and pose a danger to the general public;
(c) failed to have the exterior fencing/gating of the premises in proper working order;
(d) failed to take any reasonable precautions to ensure that secure fencing/gating surrounded the Farm;
(e) failed to take any or reasonable steps to inspect, secure, maintain and/or repair the exterior fencing/gating, when they knew or ought to have known that this would present a danger and would cause a foreseeable risk of injury to members of the general public, including the plaintiff;
(f) failed to implement a reasonable system of inspection and/or repair to the Farm fencing, gating or livestock;
(g) failed to hire contractors to inspect and/or maintain the Farm fencing/gating/livestock to ensure it was safe;
(h) created a situation of danger and emergency from which the Plaintiff, could not extricate himself, despite all reasonable care and diligence;
(i) knew or ought to have known that other incidents and/or accidents had previously occurred at the Farm and yet failed to take appropriate steps in regard thereto;
(j) failed to give proper warning to the adjacent roadway users of the propensity for livestock to escape the Farm’s boundaries;
(k) permitted the fencing/gating at the Farm to fall into a state of disrepair and failed to remedy same;
(l) failed to take reasonable care to prevent an accident which they knew or should have known was likely to happen;
(m) failed to take any or sufficient steps to ensure that the Farm was reasonably safe;
(n) failed to follow their own inspection/maintenance schedules (if any) or systems;
(o) If they had a reasonable system of inspection and maintenance in place, which is denied, they failed to carry it out in a reasonable manner;
(p) failed to post any signs warning of any hazard to users of the adjacent roadway about escaping livestock or Cows to provide reasonable or adequate warning of the dangerous situation which they knew or ought to have known existed;
(q) failed to have properly trained personnel available to safely and reasonably manage and supervise the livestock;
(r) They failed to keep any or adequate records or logs of their efforts to inspect and maintain the fencing/gating at the Farm;
(s) knowingly permitted a dangerous hazard to exist;
(t) The surrounding circumstances were within the knowledge and control of the Defendants;
(u) failed to take any measure to correct the unsafe condition of the Farm fencing/gating within a reasonable period of time or at all;
(v) failed to make safety a priority.

[15] The plaintiff also pleads public nuisance.

[16] The plaintiff brought a motion to request access to the farm to conduct an inspection and perform measurements of the fencing for the purposes of an expert report. This motion was dismissed by Vallee J. on October 3, 2023.

[17] No expert opinion was submitted by the plaintiff for the purposes of this motion.

Legal Principles of Summary Judgment

[18] Pursuant to r. 20.01 of the Rules of Civil Procedure (the Rules), after the close of pleadings, the Court must grant summary judgment if it is satisfied there is no genuine issue requiring a trial.

[19] There will be no genuine issue requiring a trial when a Court is able to reach a fair and just determination on the merits. A fair and just determination on the merits is achieved when:

(a) The process allows the judge to make necessary findings of fact;
(b) The process allows the judge to apply the law to the facts; and,
(c) It is a proportionate and more expeditious and less expensive means to achieve a just result.
(Hryniak v. Mauldin, 2014 SCC 7, para 49)

[20] On a motion for summary judgment, the Court must first determine if there is a genuine issue requiring a trial based on the evidence given on the motion. If there appears to be a genuine issue requiring a trial, the Court then determines if the need for a trial can be avoided using the powers under r. 20.04 (2.1) of the Rules. This requires weighing the evidence, evaluating the credibility of the deponents, and drawing any reasonable inference from the evidence unless it is in the interest of justice for these powers to be exercised only at a trial. These powers are presumptively available to the judge to give effect to the goals of timeliness, affordability, and proportionality in review of the litigation.
(Hryniak v. Mauldin, 2014 SCC 7, para 65; Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, para 31)

[21] In contrast, the responding party must put their “best foot forward” or risk summary judgment being awarded against them.
(Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, para 9; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, para 32, aff’d 2014 ONCA 878)
The responding party bears the evidentiary burden to present affidavit material or other evidence to support the allegations or denials in their pleading. The Court can assume that both parties have tendered all the evidence each intends to rely upon.
(1061590 Ontario Ltd. v. Ontario Jockey Club (1995), p. 557; 2313103 Ontario Inc. v. JM Food Services Ltd. et al., 2015 ONSC 4029, para 40)
Absent this evidence, an adverse inference can be drawn.
(Vincorp Financial Ltd. et al. v. Hope’s Holdings Inc., 2010 ONSC 6819, para 17; Parris v. Laidley, 2012 ONCA 755, para 2)

[22] Summary judgment is not the rule but rather the exception. If the court is not satisfied that it can make a fair and just determination on the merits, the court should not grant summary judgment and must allow the action to proceed to trial.
(Mason v. Perras Mongenais, 2018 ONCA 978, para 44)

Position of the Parties

[23] The defendants argue that there is no genuine issue requiring a trial. There is no evidentiary foundation presented by the plaintiff to support their claims of negligence, breach of duty of care or public nuisance. The defendants rely upon numerous cases (see cited cases) dealing with the obligations of farmers and farm animal escaping from a fenced area. The defendants submit that based on the case law provided, and the plaintiff has the obligation to put their best foot forward, there is no genuine issue requiring a trial.

[24] The plaintiff contends that there are issues requiring a trial. The plaintiff argues that there are issues of negligence as well as a breach of duty of care in how the defendants fenced the cows into their pasture, specifically they argue that they failed to comply with government directives and known cattle management techniques. The plaintiff argues that in reviewing this material, along with the evidence of the defendants on their examinations for discovery, the plaintiff has provided the foundation for his negligence, breach of duty and public nuisance claims and that the action should be allowed to proceed to trial.

Analysis and Conclusion

[25] The Court is to presume that all the evidence presented on the motion is all the evidence each party intends to rely upon. The time is now. It is not later at trial so a party may herd or present more evidence.

[26] As stated, the plaintiff has not provided evidence, expert or otherwise, to form a nexus between the actions or inactions of the defendants and the claims of negligence, or breach of duty of care.

[27] The plaintiff, it appears, relies on the Court to make such a nexus on the evidence that the defendants failed as cattle farmers to prevent their cattle from escaping.

[28] Moreover, it is trite to state that the factual circumstance of each case is foundational on any claim of negligence or breach of duty of care. The Court must conclude based on the factual matrix of a case whether a duty of care is owed, whether that duty of care has been breached or whether there is negligence on behalf of a defendant.

[29] The factual matrix of this matter is generally not in dispute. The defendants put cattle to pasture. This is the first time that year that the cattle were put to pasture. The defendants monitored the cattle throughout the day until approximately 5:00 p.m.

[30] A steer escaped that fenced pasture. The steer was young, under one year of age. There were no gaps in the fence and no part of the fence was pushed down to permit cattle to escape. No other cattle in the pasture escaped. Cattle have never escaped from the defendants’ farm before this accident, and none have escaped since.

[31] The steer that did escape made its way on to County Road 42 and was struck by the plaintiff’s vehicle.

[32] There was no evidence presented that indicates that the size, type, length or height of the fence was inappropriate to use either as material to fence in cattle or because of the pasture’s proximity to the road. There was no evidence presented that the maintenance of the fence or scheduling of the maintenance was improper in any way.

[33] There is no evidence on how the steer escaped from the enclosure except Collin saying that the steer may have been spooked by wildlife and jumped the fence.

[34] There is no evidence that given the wildlife in the area, namely coyotes, that the defendants breached a duty of care or were negligent.

[35] On the cases provided, the farmer defendants were generally not found responsible in law for their farm animal having escaped a fenced area.

[36] Only one case was provided where a Court found a farmer liable in negligence where a farm animal escaped and found its way on a road and was struck by a vehicle. The case is Haley v. Reade, paras 8-11, where the Court determined that the farmer was liable for failing to take reasonable precautions to prevent potatoes from being left in the barnyard near the gate where their cows were located. The Court found that because the cows were enticed and could unlock the gate while attempting to get to the potatoes their escape from the fenced area was reasonably foreseeable. There is no similar factual situation or nexus to negligent action or inaction of the defendants in the case at bar.

[37] From the case law presented, an action or inaction on the part of the defendants are necessary to find the defendants responsible in law. The mere fact that a farm animal escaped a fenced area is not enough to find the defendants responsible in law for the escaped farm animal. On the evidence presented, there is nothing more than the steer jumped the fence. There is no evidence presented that indicates that the actions or inactions of the defendants require a trial.

[38] In addition, there are no credibility issues on the material facts. There was no evidence provided by the plaintiff that contradicts the evidence as it relates to the fence, the maintenance of the fence and the behaviour of the cattle that were placed into a new environment by the defendants. The only evidence was presented by the defendants. So, there are minimal to no credibility issues and on the evidence presented on this motion, there is no credibility issue that requires a trial.

[39] Accordingly, I find that there is no issue on negligence or breach of duty of care that requires a trial.

[40] I will deal with the claim of public nuisance.

[41] For there to be an issue requiring a trial on the claim of public nuisance, the Court must find that there is a foundation in the evidence presented on this motion for such a trial.

[42] For a claim of public nuisance to be made the plaintiff needs to prove on the balance of probabilities that an activity of the defendants unreasonably interfered with the public’s interest in question for health, safety, morality, comfort or convenience.
(Grace v. Fort Erie (Town), para 80)

[43] There was no evidence presented that the conduct of the defendants was unreasonable in some way that resulted in the steer escaping and being on the road.

[44] Again, the only action that is clear is that the steer escaped, and that steer do jump fences. It is rare but it does happen. There was evidence presented that no steer or cattle have escaped from the defendants’ property before the accident and no steer or cattle have escaped from the defendants’ farm. Hence, what actions or inactions of the defendants form the basis of a trial on the claim of nuisance?

[45] There are none that have been presented on this motion by the plaintiff.

[46] Hence, I find that there is no triable issue on the claim of nuisance.

Conclusion and Disposition

[47] I find in favour of the defendants. I do accept that there are no issues requiring a trial. I am satisfied that I can make a just determination on the merits based on the evidence presented.

[48] I therefore grant the motion and dismiss the action of the plaintiff.

Costs

[49] If the parties cannot agree on costs, the defendants to serve and file its submissions for costs and prejudgment interest within 15 days from the date of this Decision, and the plaintiff will have 15 days thereafter to serve and file their submissions. The submission to be no more than five pages, double spaced, exclusive of any cost outline and offers to settle. Any case law to be hyperlinked in the submissions. There is no right to reply. Submissions are to be filed with the court. If no submissions are received within the time set out herein, an order will be made that there will be no costs.

Justice P.W. Sutherland

Ouderkirk v. Walkhavern Farms Limited, 2025 ONSC 2551

Case Summary

Ontario Superior Court of Justice

Overview

Factual Background

The Pleadings and the Proceeding

Legal Principles of Summary Judgment

Position of the Parties

Analysis and Conclusion

Conclusion and Disposition

Costs

Cited Legislation

Cited Case Law

Judge

Counsel

Parties

Areas of Law