MUNICIPAL LIABILITY FOR BY-LAW ENFORCEMENT CEMENTING THE ANALYTICAL FRAMEWORK

MUNICIPAL LIABILITY FOR BY-LAW ENFORCEMENT CEMENTING THE ANALYTICAL FRAMEWORK By Cesare Plastina Cesare Plastina 416.748.5125 cplastina@loonix.com Loopstra Nixon is a full-service Canadian business and public law firm dedicated to serving clients involved in business and finance, litigation and dispute resolution, municipal, land use planning and development, and commercial real estate. Major financial institutions, insurance companies, municipal governments, and real estate developers along with corporate organizations and individuals are among the wide range of clients we are proud to serve. Loopstra Nixon LLP Woodbine Place 135 Queen s Plate Drive Suite 600, Toronto, Ontario M9W 6V7 www.loopstranixon.com Introduction Until recently, municipalities drudged along a muddied path in deciding when and how they are to enforce their by-laws. However, beginning with the 2013 Ontario Court of Appeal decision in Raush, 1 the Courts appear to have cemented the analytical framework by which to address this legal issue, and have provided municipalities with a roadmap to determine their enforcement obligations. The recent case law has stated, in a relatively clear manner, that the Courts have shifted away from the discretionary enforcement principle as the only test to be applied when determining whether a municipality has an obligation to enforce its by-laws. In situations where the enactment and enforcement of a by-law is permissive in nature, the analysis turns to the two-step Anns test to make a liability determination. This paper will give a short history of the by-law enforcement landscape before exploring recent decisions of the Ontario Courts to provide guidance to municipalities as to how and when to enforce by-laws. This paper will then briefly canvass the state of the law with respect to the standard of care applied once a duty is found; specifically, whether the municipality acted reasonably and in good faith. It should be noted, however, that the issue of policy and operational decisions of municipalities is not canvassed, as this area of law is relatively well settled. Permissive v Mandatory By-Laws The first step in determining whether a municipality is required to enforce a bylaw, is to determine whether a duty of care is owned. A duty of care is derived in one of two ways: (a) common law or (b) statutory imposition. This requires consideration of whether the municipality s passing of a by-law arose by way of permissive/discretionary authority, or is a mandatory obligation imposed on the municipal body. During the early years of the case law, both the enactment and enforcement of by-laws were discretionary, the latter discretion a consequence of the former. 2 This discretion was accompanied by the requirement that a policy decision not to enforce a by-law must be made in good faith. 3 As such, a municipality had the discretion to enforce its by-laws as it saw fit. Whether a municipality 1 Rausch v Pickering (City), [2013] OJ No 5584, 2013 ONCA 740 [Rausch]. 2 Brown v Hamilton, [1902] OJ No 135 4 OLR 249 (Ont. Ch). 3 Kamloops v Nielsen, [1984] 2 SCR 2, 10 DLR (4th) 641. 1 Loopstra Nixon LLP Legal Solutions

was liable for a failure to enforce a bylaw, required an assessment of the factors that the municipality considered in exercising that discretion. 4 Conversely, there are situations where the enforcement of a by-law may become a mandatory obligation of the municipality due to the nature of the language of the by-law itself. In such a situation, the municipality s discretion is removed, and it is obliged to enforce the by-law. However, where the by-law is silent as to the existence of a duty to enforce, the duty must be determined according to the common law, which, as no more than a power, can be discretionary. 5 The Emergence of the Anns Analysis in By-Law Enforcement It is a well-established principle that whether a municipality owes a duty to enforce a by-law is derived from the common or private law. This principle is rooted in the decisions of Anns v London Borough of Merton 6, and woven into Canadian law by the Kamloops v Nielsen 7 decision. In the English case of Anns, the local government was found liable to a private claimant for negligence in enforcing building standards. The now well-known two-step analysis established in Anns for the determination of whether a private or common law duty of care is owed by a municipality requires answering two questions: 1. Is there a sufficiently close relationship between the parties (the municipality and the harmed person) so that, in the reasonable contemplation of authority, carelessness on its party might cause damage to that person? If yes, 2. Are there any considerations which ought to negative or limit a. The scope of the duty; b. The class of persons to who it is owed; or c. The damages to which a breach of it may give rise. 8 Later, in Kamloops, the Supreme Court of Canada expressed that the law from Anns would extend to liability in Canadian cases, including cases where economic loss resulted from the negligent acts of a regulatory body. However, Justice McIntyre, in his dissent, expressed the view that in the absence of bad faith, the City had discretion whether to enforce its by-laws. He went on to state that the adoption of the Anns test to situations of municipal by-law enforcement appeared to: set aside the distinction between statutory powers and statutory duties as a source of private law duty on a public authority. Anns places the authority on the same footing as the ordinary litigant with respect to liability for negligence, but recognizing the special nature of a public authority provided that it could be excused for its want of care in respect of acts or omissions based on bona fide policy choice which, but for the policy choice would have led to liability. 9 This decision placed the law in a state of flux, the Courts not having arrived at a point where they were fully settled on how to analyze a municipality s potential common or private law duty to enforce its by-laws. By the time the Courts decided the case of Oosthoek et al. v Corportation of the City of Thunder Bay, 10 there was a perceived struggle to reconcile the Supreme Court s decisions in Toronto (City) v Polai 11, and Kamloops. 4 Toronto (City) v Polai, [1970] OR 483, 8 DLR (3d) 869 (ONCA); aff d (1973) SCR 38, 28 DLR (3d) 368 [Polai]. 5 Dusevic v Columbia Shuswap (Regional District) (1989), 44, MPLR 160 (BCSC). 6 [1977] 2 All ER 492, [1978] AC 728 [Anns]. 7 [1984] 2 SCR 2, 10 DLR (4th) 641 [Kamloops]. 8 Anns, supra note 7 at para 13. 9 Ibid at para 112. 10 [1996] OJ No 3318 [Oosthoek]. 11 Polai, supra 2 Loopstra Nixon LLP Legal Solutions

In Polai, the Defendant argued that the City disentitled itself from restraining her from renting out five apartments in her home, contrary to the City s zoning by-laws. The disentitlement, it was argued, flowed from the fact that despite the by-law applying generally to all property owners in specified areas, the City maintained a deferred list of properties that violated the by-law, but that were not prosecuted for this violation. The trial judge sided with the Defendant, but was overturned by the Ontario Court of Appeal. The portion of the Court s reasoning most applicable to this discussion, was the finding that the courts had no power to control the exercise of the City s discretion in the manner of the administration of the by-law under review. 12 As such, the tension in the law at this time was between the discretionary enforcement principle as the only test (Polai), and an attempt to instill the Anns test to the by-law enforcement analysis (Kamloops). In his obiter dicta in Oosthoek, Justice Carthy felt that neither the Polai nor the Kamloops decisions addressed the general obligation to enforce by-laws, and went onto state: It can be said that the City has the right not to enforce its by-laws and, yet unless that decision is made at the policy level, its failure to do so may give rise to a claim for damages by someone to whom a duty is owed and who is within the ambit risk of harm by reason of that failure. 13 It is the opinion of the author that this signaled the beginning of a solidification in the law that a municipality s discretion to enforce a by-law is subject to the two-stage Anns test, after it is determined that a municipality enacted a by-law pursuant to a permissive rather than mandatory power granted to it by statute. The Anns analytical framework in determining a municipality s discretion to enforce by-laws was adopted in three recent Ontario Court decisions. The recent case law, therefore, has cemented the test by which to determine when and how a municipality should enforce its by-laws. Recent Case Law Rausch v Pickering (City), [2013] OJ No 5584, 2013 ONCA 740 This decision involved the relationship between statutory authority and civil liability. Rausch raised a herd of wild boars on his property, located within the limits of the appellant, the City of Pickering. Pickering, relying on a by-law that restricted keeping certain types of animals within its limits, forced Rausch to get rid of his herd. Rausch sued the City for damages suffered as a result of the loss of his business, alleging that Pickering was negligent in the enforcement of its by-law. Pickering brought a rule 21 motion to strike Rausch s pleadings alleging negligence by the City.The Motion judge stated the pleading asserted a claim in negligence against [Pickering] for conduct which includes an alleged breach of s. 6 of the Farming and Food Protection Act. 14 Section 6 of the FFPPA states: 6. (1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation. The motion judge held that the claim of a breach of the FFPPA is subsumed in the law of negligence, and if Rausch is able to prove that Pickering breached the FFPPA by prosecuting him under the by-law when it knew or ought to have known that it did not apply to him and was negligent in doing so, Rausch may succeed in his claim. 15 As such, Pickering s motion was denied. 12 Polai, supra note 4 at paras 22 and 23. 13 Ibid at para 26. 14 1998 SO 1998 c 1 [FFPPA]; Rausch, supra note 1 at para 18. 15 Rausch, supra note 1 at para 19. 3 Loopstra Nixon LLP Legal Solutions

At the Divisional Court, Pickering s appeal was dismissed. Justice Young reasoned that there may be an implicit statutory duty of care and that it was not plain and obvious that the action could not succeed. 16 She also found that the facts as pled may give rise to a common law duty of care on the part of the City, even in the absence of a statutory duty of care. 17 In doing so, she performed an Anns analysis, finding a prima facie duty of care, and no overriding policy reasons to negate this duty; she explained her reasoning as follows: Concerns about potentially overbroad liability may be addressed by the formulation of the standard of care. Mr. Rausch alleges that the City, in enforcing the By-law, had a duty to consider whether the By-law actually applied to him before charging him and\or advising him to get rid of his animals. In essence, the allegation is that a reasonable by-law enforcement officer should, in the circumstances, have considered whether s. 6(2) of the FFPPA applied. This will be a question of fact, as the issue of standard of care always is. If, at trial, Mr. Rausch establishes that the operation appeared farm-like, in other words, that the City knew that he was raising the animals with a view to slaughter them for commercial sale, the trial judge might conclude that the City knew or ought to have known that Mr. Rausch's operation could be a normal farm operation within the meaning of s. 6(2), and that the City failed to meet the standard of care when it did not consider referring the matter to the Board for determination. I wish to be clear that I am not suggesting that, because the City has a duty to reasonably enforce the By-law, it will always have a duty to refer every single matter to the Board. What will be required of the City to meet its standard of care will be dependent on the particular facts of each situation. For this reason, it is not obvious to me that a floodgates argument could justify negating the duty of care, particularly at this preliminary stage. 18 In the appeal to the Ontario Court of Appeal, the Court stated that Pickering is a statutory actor, and any allegation of negligence against it must be analyzed in the context of the statutory scheme comprised of the Municipal Act, 2001 19 the FFPPA, and the by-law in question. The Court held that in the context of by-law enforcement actions, the relationship between municipal by-law enforcement officers and farmers against whom they are enforcing a by-law is not a settled or analogous category that gives rise to a common law duty of care. As such, the Court considered whether the general requirements for liability in tort are met according to the two-stage Anns test. In its analysis, the Court found foreseeability clearly made out in the relationship between Pickering and Rausch. Specifically, the Court stated that it was foreseeable that a by-law officer who takes steps to ensure a farmer s compliance with a by-law was found to be aware that any missteps in enforcement carry a real potential of harm to the farmer, as the effect may be to restrict a farm operation 20 The Court, therefore, was left to deal with the issue of proximity. Drawing on the decision in Cooper v Hobart, 21 Justice Epstein noted that proximity is the focus of the analysis of whether a public body owes a common law duty of care. 22 It was determined that Pickering s enforcement targeted Rausch specifically, and the attention was not focused on every resident in the municipality. Justice Epstein further held that the finding of a close and direct relationship is bolstered by the type of steps open to the City to ensure compliance with the by-law. 23 Such steps were noted as the ability to restrain activities that violate by-laws; issue Orders to Comply; order remedial action; and levy fines and lay provincial offence charges. 16 Ibid at para 22. 17 Ibid. 18 Ibid at para 23. 19 2001 SO c 25 [Municipal Act]. 20 Rausch, supra note 1 at para 54. 21 [2001] 3 SCR 537. 22 Rausch, supra note 1, at para 56. 23 Ibid at 59. 4 Loopstra Nixon LLP Legal Solutions

Within the proximity analysis, Justice Epstein also commented on the following aspects: 1. Reliance on the by-law enforcement officer; 2. The availability of adequate alternative remedies for the wrongful enforcement of the by-laws; and 3. Whether the recognition of a prima facie duty of care would conflict with an overarching statutory or public duty. With respect to reliance, it was determined that Rausch relied on the by-law enforcement officer. Specifically, Rausch relied on the fact that if a by-law enforcement officer decided to enforce a by-law that had the potential to destroy a business or create other serious consequences, the officer would first put his or her mind to whether there was jurisdiction to do so. 24 This reliance caused Rausch to take steps that caused him to lose his animals. Justice Epstein also found that Rausch s only meaningful avenue of redress for the financial loss of his herd was a civil action. As such, Justice Epstein held that a legislative scheme that does not provide a remedy in damages may not be an adequate alternative to recognizing a cause of action. She stated, The absence of an adequate remedy means that unless a duty of care is recognized, Mr. Rausch will have no recompense for the harm he suffered because of the City s taking potentially unwarranted steps. To deny a remedy in tory would deny justice. This supports the recognition of the tort of negligent assumption of jurisdiction to enforce a by-law that may result in the restriction of a farming operation. 25 Finally, with respect to a prima facie duty of care, Justice Epstein held that such a duty will be negated only when the conflict, considered together with other relevant policy considerations, gives rise to a real potential for negative policy consequences. 26 Justice Epstein found that the by-law enforcement officer s duties to the municipality and its residents would not be affected by recognizing a duty of care between the by-law enforcement officers and farmers whom they are investigating for possible by-law violations, and therefore, there was no conflict. Her Honour further stated that it is in everyone s interest that by-laws not be enforced in an unconstrained manner. 27 In the end, Justice Epstein found that the risk of Rausch losing his business due to the enforcement of the by-law supported a finding of a proximate relationship giving rise to a duty of care. Justice Epstein then applied the second part of the Anns test, considering whether policy considerations negated the prima facie duty of care. She found that there was no compelling reason to negate the common law duty of care. On this basis the Ontario Court of Appeal allowed the claim to proceed to trial which would allow the court to fully canvass all of the issues and make a proper determination. 118143 Ontario Inc. v Mississauga (City), 2015 ONSC 3691, 255 ACWS (3d) 751 In this decision, two plaintiffs were in the business of leasing portable signs to customers within the limits of the City of Mississauga. Amendments were made to the Municipal Act providing for the expiry of certain by-laws in 2001. Mississauga passed new signage by-laws, in 2002 and began issuing notices of compliance and seizing signs, some of which were the plaintiffs. The plaintiffs removed the remainder of their signs to avoid further seizure. The plaintiffs took the position that Mississauga was not entitled to enforce the by-law as their signs were in locations that were grandfathered, and that in doing so, Mississauga s actions caused plaintiffs to lose customers. Following the decision in Rausch, the Court applied the Anns test to determine whether a common law duty of care was owed to the plaintiffs. Having found no evidence that Mississauga targeted the plaintiffs by enacting the 2002 by-law, the Court asserted that Mississauga interacted with the principal of one company, and not the other, and therefore found a proximate relationship in the former and not the latter. As such, the Court found that Mississauga owed a prima facie duty of 24 Ibid at para 60. 25 Ibid at para 65. 26 Ibid at para 67. 27 Ibid at para 69. 5 Loopstra Nixon LLP Legal Solutions

care based on a reasonable foreseeability of harm and a proximate relationship to one of the Plaintiffs. 28 The Court assessed the steps taken by Mississauga, specifically, that the steps did not amount to an enforcement of the by-law, but were rather an exercise of discretion to implement policy, namely to attain the objectives for the orderly regulation of signs, as well as to ensure that private signs do not clutter and trespass upon public lands. Further, the Court expressed its concern that finding no policy reason to deny the existence of a duty of care would lead to indeterminate liability because every single company and sign customer who leased signs would have a cause of action. As a result, the duty of care was found to be negated by the existence of policy considerations in the second branch of the Anns test. 29 Vlanich v Typhair, 2016 ONCA 517, 131 OR (3d) 353 In the recent decision of Vlanich, 30 the plaintiff brought an action for personal injury as a result of a motor vehicle accident sustained while he was a passenger in a vehicle that was rear-ended by a taxi. At the time of the accident, Sheileena Mallette was driving a vehicle owned by her mother Sheila Mallette, Kaitland Vlanich's aunt. The vehicle was insured by the appellant State Farm. The State Farm policy included a standard OPCF-44R Family Protection Coverage endorsement providing coverage if the at-fault motorist is uninsured or underinsured. The trial judge found that the Township had met the standard of care when it issued a license to Aces Taxi in 2005 as a certificate of $1,000,000 liability insurance coverage had been supplied. He found that Aces Taxi had either been untruthful or negligent when declaring that there were no significant changes affecting its ability to hold a license after ceasing to carry $1,000,000 of insurance coverage. 31 The trial judge concluded that [w]hile the best practice may have been for the Township to obtain proof of the $1,000,000 insurance coverage at the time of renewal failing to do so [was] not unreasonable or in bad faith. 32 He found that the Township had relied on other reasonable measures to enforce the bylaw. 33 It had requested and obtained pink slips indicating that Aces Taxi was insured and was entitled to rely on the signed declarations that there had been no significant changes. That, said the trial judge, was sufficient to satisfy the standard of care. The issue on appeal was whether a municipality is liable in negligence for losses suffered as a result of the collision, where the taxi was inadequately insured in violation of the municipality s licensing by-law. In solidifying the analytical framework required to determine whether a municipality is to be held liable for negligent enforcement of its by-laws, Justice Sharpe undertook an Anns analysis. First, Justice Sharpe found that there was no recognized duty of care that fell within or was analogous to one of the cases in which the courts have recognized a duty of care. 34 As such, the analysis shifted to whether a new duty of care existed between the municipality and the plaintiff pursuant to an Anns analysis. The municipality conceded that failing to enforce the by-law s $1,000,000 insurance requirement, resulted in reasonably foreseeable harm to a person involved in a motor vehicle accident with an underinsured taxi. With respect to proximity, Justice Sharpe stated this required a sufficient nexus/connection between the alleged neglect of the public authority and the risk that caused the losses suffered by the plaintiffs. 35 As such, for a duty of care to exist, Justice Sharpe stated it must be found in the by-law that created a detailed scheme for licensing and regulation of taxis. 36 A claim in this case was forwarded by the insurer State Farm, whose policy was triggered by the uninsured motorist 28 118143 Ontario Inc. v Mississauga (City), 2015 ONSC 3691, 255 ACWS (3d) 751, at paras 225 to 229 [118143 Ontario Inc.]. 29 Ibid, at paras 239 to 242. 30 Vlanich v Typhair, 2016 ONCA 517, 131 OR (3d) 353 [Vlanich]. 31 Ibid at para 13. 32 Ibid at para 14. 33 Ibid. 34 Ibid at para 24. 35 Ibid at para. 27. 36 Ibid at para. 28. 6 Loopstra Nixon LLP Legal Solutions

coverage. State Farm s claim was for loss of access to insurance monies triggered by the tortious conduct of the taxi company. As such, the claim was for pure economic loss. Justice Sharpe found that the suggestion that a licensing authority should be liable for economic losses arising from the tortious conduct of non-compliant third party licensees, was extraordinary. Specifically, Justice Sharpe held the following: A public authority administering a licensing scheme owes a general duty to the public at large to ensure compliance with the regulatory scheme. However, that general public duty is not equivalent to a private law duty of care. Without something more, licensing a third party does not create a close and direct relationship capable of giving rise to a duty of care between a public authority and an individual member of the public who may interact with a licensee. 37 Justice Sharpe therefore concluded that there was no duty of care owed by the municipality, made out on the facts of the case at bar, as there was a lack of a proximate and direct relationship between the municipality and the Plaintiff. Standard of Care: Reasonableness and Good Faith Where a decision may not have been made by a municipality with respect to whether or not to enforce a by-law, the municipality may be able to escape liability if the decision made was reasonable, and done in good faith. The decisions of Foley v Shamess, 38 Donnell v Joseph, 39 and Kay v Caverson, 40 exemplify the analysis the Courts undertake to determine whether these benchmarks have been met. Foley v Shamess, 2008 ONCA 588, 168 ACWS (3d) 862 This litigation centered on a three-story, three-unit building, partially owned by the Shamesses and partially owned by the Foleys. The former s units were rundown and unoccupied, and the latter s were in need of repair and occupied by tenants. The Town of Parry Sound issued notices of violation under its property standards by-law against both parties. No repairs were made. Later, the Town s chief building official declared the entire building unsafe and ordered the owners to undertake long-term repairs. They did no repairs which prompted the town to prohibit the use/occupancy of the building before ordering the building demolished. The Foleys sued for damages for negligence and nuisance, claiming that the Shamesses failure to repair or demolish their units in response to the initial notice, and the Town s failure to enforce its property standards by-law deprived them of the use of their units. The Foley s wanted the Shamess units demolished, and their units preserved at the expense of the Shamesses and/or the Town. The trial judge found both the Town and the Shamesses 40% liable, and the Foleys 20% liable. The trial judge found that the Town or Shamesses should have demolished the Shamess units after the three years had passed from the first notice of violation of the Town s by-laws. He found that the Town should have enforced its by-law earlier, and the failure to do so contributed to the eventual demolition of the entire building, when demolishment of the Shamess units could have preserved the Foley units. The Ontario Court of Appeal found that a duty of care was owed to the Foleys to enforce the by-laws in question, but no duty to the Foleys to undertake a partial demolition of the building. 41 Applying the principle in Oosthoek, the Court of Appeal stated that once the Town made a policy decision to enact a property standards by-law, it could be liable to property owners for the negligent enforcement of same. However, Justice Laskin stated that a municipality has a broad discretion in determining how it will enforce its by-laws, as long as it acts reasonably and in good faith: 37 Ibid at para. 39. 38 2008 ONCA 588, 168 ACWS (3d) 862 [Foley]. 39 2012 ONCA 240, 215 ACWS (3d) 497 [Donnell]. 40 [2011] OJ No 3639 [Kay]. 41 Foley, supra note 38 at para 45. 7 Loopstra Nixon LLP Legal Solutions

It is one thing to say a municipality has a duty to enforce its by-laws. The way it enforces them is quite another thing. 42 As the trial judge made no finding of bad faith, and the evidence on appeal was that the Town acted fairly reasonable throughout the process, the Court of Appeal could not find the Town at fault for not undertaking a partial demolition earlier. Donnell v Joseph, 2012 ONCA 240, 215 ACWS (3d) 497 This case concerns an alleged contravention of a zoning by-law. The Court of Appeal that the application judge made no finding that the County of Norfolk acted in bad faith in its investigation of the Plaintiff s zoning-related complaints or in the process it followed, to decide that the defendants impugned activities did not contravene the by-law. Absent findings of bad faith or unreasonable conduct by the County, it cannot be said that the County s discretionary decision regarding the enforcement of the by-law against the defendants is vulnerable to reversal by a reviewing court. 43 The decision of the County not to enforce its by-law after appropriate investigation was found to be within the scope of the County s discretionary enforcement authority, which the Court felt should not be lightly interfered with. 44 In absence of bad faith or unreasonableness on the part of the County, there was no basis for the Court to interfere with the County s decision not to enforce the by-law in question. Kay v Caverson, [2011] OJ No 3639 The plaintiff commenced an action against her neighbours as a result of perceived flooding of her property that occurred after renovations to her neighbours home. The City of Mississauga was also sued for negligently approving the building and site plan, as well as negligently inspecting the neighbours property during and after the renovation. Specifically, the plaintiff alleged that the City was in breach of its duty to enforce one of its Property Standards by-laws. Despite a finding that the by-law was not contravened, and even if it was, the plaintiff was at least partially responsible for the contravention, Justice Daley went onto consider whether the City was required to enforce the by-law. Citing the decision in Foley, Justice Daley stated: Mississauga owed a prima facie duty to the Plaintiff, the [Defendants] and other persons who may be affected, to enforce its property standards by-law. The standard of care applicable to a municipality s conduct is whether it acted reasonably and in good faith in all of the circumstances. 45 Justice Daley concluded that Mississauga acted reasonably and in good faith so far as its enforcement of its Property Standards by-law was concerned. There was no evidence whatsoever that the temporary accumulation of water between the properties could reasonably be foreseen as a potential cause of accident or health hazard such that Mississauga was bound to take active steps to ensure that the area was excavated so that water could drain through to the municipal ditch. Conclusion In light of the decisions in Rausch, 118143, and Vlanich, it appears that the Canadian jurisprudence has completed its shift away from the long-standing discretionary enforcement principle as the sole test of whether a municipality has an obligation to enforce its by-laws. Indeed, the discretionary enforcement principle now appears to be only part of a greater legal analysis. In instances where the enactment and enforcement of a by-law is permissive in nature, the jurisprudence dictates that the two-stage Anns test is employed. Once a private law duty of care is found, a determination of whether the standard has been met follows. 42 Ibid at para 29. 43 Donnell, supra note 39 at para 29. 44 Ibid at para 31. 45 Kay, supra note 40 at para 225. 8 Loopstra Nixon LLP Legal Solutions

Once a duty of care is established, and the appropriate standard of care is determined, the analysis shifts to whether a municipality has met the applicable standard. As the decisions in Foley and Kay note, the standard private law negligence framework is to be applied, and a reasonably made operational decision arrived at in good faith meets the standard of care, which in turns satisfies the duty of care. This should result in a finding of no liability as against the municipality in the enforcement of its by-laws. Even if the established standard of care is not met, a bona fide policy decision related to the manner in which a by-law is enforced is capable of exempting a municipality from liability. This area of law was not canvassed in this paper, but is relatively well-settled. 46 Based on the recent and prevailing case law, the analysis of when and how a municipality will be obligated to enforce its bylaws is clear. There needs to be a clear and direct relationship between the municipality and the person alleging the harm. If this relationship is not already established in case law, then the Courts will undertake an Anns analysis to determine whether a relationship of foreseeability and proximity of harm exists to give rise to a duty of care before embarking on an assessment of a breach of any such duty owed. About Loopstra Nixon LLP Loopstra Nixon is a full-service Canadian business and public law firm dedicated to serving clients involved in business and finance, litigation and dispute resolution, municipal, land use planning and development, and commercial real estate. Major financial institutions, insurance companies, municipal governments, and real estate developers along with corporate organizations and individuals are among the wide range of clients we are proud to serve. The foregoing has been prepared for clients of Loopstra Nixon LLP. While every effort has been made to ensure accuracy, the information contained herein should not be relied on as legal advice; specific advice should be obtained in each individual case. No responsibility for any loss occasioned to any person acting or refraining from action as a result of material herein is accepted by the authors or Loopstra Nixon LLP. If advice concerning specific circumstances is required, we would be pleased to be of assistance. 2017 Loopstra Nixon LLP. All rights reserved. This may qualify as Attorney Advertising requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. 46 See Just v British Columbia, [1989] 2 SCR 1228; see also Brown v British Columbia (Ministry of Transportation and Highways), [1994] SCJ No 20; Westcoast Landfill Diversion Corp. v Cowichan alley (Regional District), [2009] BCJ No 122. 9 Loopstra Nixon LLP Legal Solutions