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Torts - Negligence - Standard of Care

118143 Ontario Inc. (Canamex Promotions) v. Mississauga (City) (Ont CA, 2016)

In this case the court discusses the 'standard of care' element of the tort of negligence:
[29] To make out a claim in negligence, a plaintiff must establish three things. First, that the defendant owed a duty of care to the plaintiff. Second, that the defendants’ conduct fell below what could be expected of the ordinary, reasonable and prudent person in the circumstances. Third, that the plaintiff suffered damages as a consequence of the defendant’s breach of the standard of care: see Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at paras. 21-28; Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 93.

[30] I am concerned only with the second of the three requirements. In Ryan, at para. 28, Major J. observed:
The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
[31] This court applied the general language in Ryan to a claim of negligent enforcement of a bylaw in Rausch v. Pickering (City), 2013 ONCA 740 (CanLII), 369 D.L.R. (4th) 691, at paras. 87-88:
The approach to determining the standard of care in these circumstances would be 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”.

Municipalities are presumed to know the law. 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 bylaw. 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.[3] [Citations omitted]
The appellants’ rely on Rausch and argue that the same factors identified by Epstein J.A. are relevant to the determination of the standard of care in this case.

.....

[36] Ordinarily, and absent a statutory provision to the contrary, the plaintiff must plead and prove the essential elements of a negligence claim, including the applicable standard of proof and the defendant’s failure to meet that standard: see Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 10th ed. (Toronto: LexisNexis Canada, 2015), at pp. 267-68; see also Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311.


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