Law Times

Page 10 June 23, 2014 • Law Times www.lawtimesnews.com FOCUS Common law duty of care among notable recent cases By Julius MelniTzer For Law Times COMMON LAW DUTY OF CARE Municipalities may be liable for negligence claims based on a common law duty of care, ac- cording to the Ontario Court of Appeal decision in Rausch v. Pickering (City). The case arose when the City of Pickering discovered the plaintiff was raising a herd of wild boars contrary to a local bylaw. The city ordered Rausch to remove the boars on pain of forcible removal. Rausch com- plied, but the city went ahead and charged him under the bylaw. It later withdrew the charges. Rausch sued for economic loss. He later sought to amend his pleading to add a negligence claim on the basis that the city owed him a duty of care under the Farming and Food Produc- tion Protection Act. The legis- lation prohibits municipalities from restricting normal farm practices that are part of an ag- ricultural operation. It was unclear whether Rausch had pleaded the claim based on the statutory duty with- in the limitation period, but he also argued (although he hadn't specifically alleged) the city had breached a common law duty of care by failing to consider its au- thority to enact the bylaw. At first instance, the master allowed the amendments, a deci- sion upheld by the motions judge and the Divisional Court. On further appeal, the Court of Appeal ruled that although the act didn't impose an explicit duty of care on the city, it was arguable that it imposed an implied one. But even absent an implied statu- tory duty, neither the farming legislation nor the Municipal Act precluded the existence of a com- mon law duty of care to farm- ers the city was investigating for breach of the bylaw. The upshot was it wasn't "plain and obvious" that the claim based on common law had no chance of success. Al- though the amendments didn't explicitly plead the common law duty, the amendments con- tained the "factual matrix" to support the common law claim. As the court saw it, Rausch was "merely relying on a differ- ent legal path to reach the same conclusion" based on the same material facts pleaded. The common law claim, therefore, was an alternative theory of li- ability and not a new cause of action. As a result, the limita- tion period didn't bar the claim. MUNICIPAL ACT TO THE RESCUE Having contrary neighbours can be problematic for people who can't effect necessary re- pairs to their own property without intruding on their ad- versary's territory. Who would have thought this sort of pettiness could come within the remedial ambit of Ontario's Municipal Act? But as Michael Foderick of McCarthy Tétrault LLP's Toronto office notes, that's precisely what the legislation does. Indeed, the act authorizes municipalities to enact right- of-entry bylaws that allow land- owners to enter adjoining land at any reasonable time, subject to certain conditions and limi- tations, in order to make altera- tions or repairs to structures on their own property. But as Foderick explains, the municipalities that have chosen to do so have taken different ap- proaches with their bylaws. Some require people seeking access to get a permit, but others, such as Hamilton, Ont., don't. Some, like Ottawa, require security depos- its as a hedge against damages. For its part, Toronto differenti- ates low- and high- impact en- tries by having different permit requirements for each category. "In municipalities where no such bylaw has been passed," ac- cording to Foderick, this section will be of no help to a property owner denied access to a neigh- bour's land. WHOSE TREE IS THIS ANYWAY? Trees, beautiful facets of nature as they are, can be annoying when they're in the wrong place. One example involves trees growing on or over the prop- erty line where it's not clear who owns it. Writing in McCarthy Tétrault LLP's real property law blog, Fod- erick notes that in some provinc- es, the common law lets property owners cut any part of a tree that crosses the property line. But that's not the case in On- tario. In Hartley v. Cunningham, the Ontario Court of Appeal relied on what Foderick calls an "obscure statutory provision" in the Forestry Act to determine that the neighbours on each side of a boundary tree jointly own it and both must give consent to its alteration or destruction. But the fact that joint owner- ship emanates from an obscure law doesn't mean that unilateral action is without considerable risk. Indeed, the penalty for al- tering or destroying a boundary tree on one's own is $20,000 or three months' imprisonment. And that's quite apart from any civil remedies. As Foderick sees it, the leg- islation is as notable for what it doesn't say as for what it does mandate. "This provision makes no distinction between trees whose trunks emerge from the ground on a property line, and trees whose trunks emerge from the ground entirely on one side of a property line and cross the line in the air. It also makes no dis- tinction between trees that have been intentionally planted or that have grown spontaneously, or between 100-year-old oaks and tiny weed-tree saplings," wrote Foderick. "This provision appears to apply regardless of any of those facts, although there may still be creative solutions available, depending on specific circum- stances." Residential neighbours aside, the issue can be very problem- atic for developers. As Foderick noted, root systems and cano- pies can be extensive, allowing a co-owner who either opposes a development or is simply op- portunistic to hold a developer to ransom. "As a result, resolving bound- ary tree issues in Ontario can no longer be considered a trivial af- terthought, and will more likely require the assistance of an expe- rienced lawyer in addition to an arborist," Foderick concluded. LT CANADA'S PRE-EMINENT MAGAZINE FOCUSING ON THE BUSINESS OF LAW Showcasing leading lawyers and valuable legal business information, Lexpert® is the authoritative source for the latest news and information on the business of law in Canada. SUBSCRIBE TO ® $175* for 10 issues/year *plus applicable taxes Lexpert® feature articles examine legal and corporate issues in: ȕ Emerging practice areas and legal business opportunities ȕ Business development initiatives ȕ Recruitment, retention and talent development ȕ Thought leadership and the future of business law and the legal community Available in print, online, digital format and on our blog, Lexpert® magazine connects in-house counsel, law firms and Canada's C-suite with timely and valuable information on key topics in business law. ORDER YOUR COPY! Visit carswell.com or call 416.609.3800 or 1.800.387.5164 LexpertSub_LT_May12_14.indd 1 14-05-06 8:43 AM Neighbours on each side of a boundary tree must give their consent to alter or destroy it, the Ontario Court of Appeal has held. Photo: rSnapshotPhoto/Shutterstock Municipal Law Roundup

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