Court File No. CV-18-00611214-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N: SEARS CANADA INC., by its Court-appointed Litigation Trustee, J. Douglas Cunningham, Q.C. Plaintiff and ESL INVESTMENTS INC., ESL PARTNERS LP, SPE I PARTNERS LP, SPE MASTER I LP, ESL INSTITUTIONAL PARTNERS LP, EDWARD LAMPERT, EPHRAIM J. BIRD, DOUGLAS CAMPBELL, WILLIAM CROWLEY, WILLIAM HARKER, R. RAJA KHANNA, JAMES MCBURNEY, DEBORAH ROSATI and DONALD ROSS Defendants RESPONDING BOOK OF AUTHORITIES OF THE PLAINTIFF April 11, 2019 LAX O'SULLIVAN LISUS GOTTLIEB LLP Counsel Suite 2750, 145 King Street West Toronto ON M5H 1J8 Matthew P. Gottlieb LSO#: 32268B [email protected] Tel: 416 644 5353 Andrew Winton LSO#: 54473I [email protected] Tel: 416 644 5342 Philip Underwood LSO#: 73637W [email protected] Tel: 416 645 5078 Fax: 416 598 3730 Lawyers for the Plaintiff -2- TO: LITIGATION SERVICE LIST INDEX INDEX LIST OF AUTHORITIES Tab 1 Rausch v. Pickering (City), 2013 ONCA 740 2 Odhavji Estate v. Woodhouse, 2003 SCC 69 3 Holley v. Northern Trust Co., Canada, 2014 ONSC 889 (aff’d, 2014 ONCA 719) 4 Cami International Poultry Inc. v. Chicken Farmers of Ontario, 2013 ONSC 7142 5 Fiber Connections Inc. v. SVCM Capital Ltd., [2005] O.J. No. 3899 (S.C.J.) (lv. to appeal granted on other grounds, [2005] O.J. No. 1845 (C.A. [In Chambers])) 6 Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458 7 Dalex Co. v. Schwartz Levitsky Feldman (1994), 19 O.R. (3d) 463 (Gen. Div.) 8 APAC limited v. Cronin, 2018 ONSC 3256 (aff’d, 2019 ONSC 86 (Div. Ct.)) 9 Ontario v. Rothmans Inc., 2016 ONSC 59 (Master) 10 North York Branson Hospital v. Praxair Canada Inc., [1998] O.J. No. 5993 (Gen. Div.) (lv. to appeal denied, [1999] O.J. No. 399 (Div. Ct.)) 11 The Catalyst Capital Group Inc. v. West Face Capital Inc., 2019 ONSC 128 12 Adelaide Capital Corp. v. Toronto Dominion Bank, 2007 ONCA 456 13 Malata Group (HK) Ltd. v. Jung, 2008 ONCA 111 14 Ernst & Young Inc. v. Essar Global Fund Limited, 2017 ONCA 1014 TAB 1 2013 ONCA 740 Ontario Court of Appeal Rausch v. Pickering (City) 2013 CarswellOnt 17090, 2013 ONCA 740, [2013] O.J. No. 5584, 17 M.P.L.R. (5th) 1, 235 A.C.W.S. (3d) 534, 313 O.A.C. 202, 369 D.L.R. (4th) 691 James Rausch, Plaintiff (Respondent) and The Corporation of the City of Pickering, Defendant (Appellant) J. MacFarland, David Watt, Gloria Epstein JJ.A. Heard: June 25, 2013 Judgment: December 9, 2013 Docket: CA C56543 Proceedings: affirming Rausch v. Pickering (City) (2012), 2012 CarswellOnt 11213, 2012 ONSC 4688, 112 O.R. (3d) 41, 2 M.P.L.R. (5th) 54, 354 D.L.R. (4th) 549 (Ont. Div. Ct.); affirming Rausch v. Pickering (City) (2011), 2011 ONSC 2797, 2011 CarswellOnt 5591 (Ont. S.C.J.) Counsel: Stuart Zacharias, for Appellant Yan David Payne, Andrew D. Pelletier, for Respondent Gloria Epstein J.A.: Introduction 1 This appeal involves the relationship between statutory authority and civil liability. The respondent, James Rausch, raised a herd of wild boars on property he occupied within the jurisdiction of the appellant, the City of Pickering. The City, relying on a by-law that restricted keeping certain types of animals within its limits, forced Mr. Rausch to get rid of his herd. Mr. Rausch sued the City for damages suffered as a result of the loss of his wild boar business. Initially, his claim was advanced on the basis of trespass, abuse of process and malicious prosecution. Mr. Rausch later obtained an order, subsequently affirmed by an order of the Divisional Court, allowing him to add a claim in negligence. The City appeals this order, arguing that the negligence claim is not tenable and should not be allowed to proceed to trial. 2 The viability of Mr. Rausch's negligence claim turns on three issues: first, whether the City may be said to owe either a statutory or common law duty of care; second, if a common law duty of care may be said to exist, whether Mr. Rausch has pleaded such a duty; and, third, if so, whether it is statute-barred. In my view, the statutory framework imposes no explicit duty of care. That said, I would not foreclose the possibility that Mr. Rausch may be able to establish an implied statutory duty of care. I am also of the view that Mr. Rausch's amended pleading advances a viable common law duty of care — one that is not out of time. I would therefore confirm the order of the Divisional Court and dismiss the City's appeal. Mr. Rausch's Pleading 3 In 2007, Mr. Rausch brought this action against the City seeking a remedy for the financial loss he suffered as a result of the City's alleged wrongful enforcement of By-law No. 1769/83, (17 September 1984) (the "By-law"), which restricted having certain categories of animals on property within its limits. 1 4 The allegations in Mr. Rausch's original statement of claim can be summarized as follows: 1 • Mr. Rausch is a tenant on 10 acres of land within the City's boundaries (para. 2). • Pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, the City has jurisdiction to enact by-laws, including those relating to animals' being kept on land within its boundaries (para. 3). • Between 1997 and 2006, Mr. Rausch invested time and money raising premium wild boars for human consumption (paras. 4-7). • Late in January 2006, the City advised Mr. Rausch that his enterprise violated the By-law and that if he did not immediately remove the wild boars from his property, the City would issue an order to comply, charge Mr. Rausch for violating the By-law and forcibly remove the animals (paras. 9-10). • Mr. Rausch protested the application of the By-law. The City refused to change its position and Mr. Rausch, under protest, got rid of his animals (paras. 10-11). • The City then charged Mr. Rausch for breaching the By-law and proceeded with its investigation. In so doing, City representatives came onto Mr. Rausch's property without permission (paras. 12, 16). • A few days before Mr. Rausch's trial for breaching the By-law, the City withdrew the charges without explanation (para. 14). • Mr. Rausch later learned that the City acted on the advice of Transport Canada in taking these steps against him. The City conducted no investigation of its own (para. 15). • The City charged him without reasonably believing it would obtain a conviction; rather, its goal was to remove him from the property (para. 17). 5 Following examinations for discovery, Mr. Rausch brought a motion to amend his pleading to add a claim in negligence. In the proposed amendments Mr. Rausch alleged that the City owed him a duty of care pursuant to s. 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the "FFPPA"), a provision that prevents a municipal by-law from restricting a normal farm practice that is part of an agricultural operation. 6 The Master granted an order allowing Mr. Rausch to amend his pleading. However, in his endorsement, the Master did not explicitly rule on whether the negligence pleading was a legally tenable cause of action. 7 As a result of the Master's order, the following paragraphs were added to the statement of claim: 18A. Further, or in the alternative, the Plaintiff states that the said by-laws as referenced herein are not applicable to him pursuant to the provisions of s. 6 of the Farming and Food Production Protection Act.... Specifically, the Plaintiff states that his raising of wild boars as hereinbefore described constitute a "normal farm practice" as defined under the provisions of the Act and accordingly, pursuant to s. 6 thereof, the by-laws in question would not apply to him or to his property. 18B. The failure of the Defendant to comply with the terms of s. 6 of the Act rendered any enforcement proceedings as against the Plaintiff ultra vires of the Defendant. Additionally, by taking enforcement procedures as hereinbefore described as against the Plaintiff, the Defendant was in breach of the terms of the Act, as the by-laws in question did not apply in the circumstances. 18C. The Plaintiff states that the Defendant knew, or ought to have known, that the by-laws in question did not apply to him given the provisions of the Act and that they should not have taken any enforcement proceedings as hereinbefore described, whether advising him to remove the wild boars from his property as set out in the 2 correspondence from Brad Suckling, dated January 20, 2006, charging him under any or all by-laws, or proceeding with the prosecution of him under the said by-laws. 18D. The Plaintiff states that the said statutory breach is a direct cause of damages as set out herein for which the Defendant is liable in negligence. 8 The City then brought a Rule 21 motion to strike out the amendments as disclosing no cause of action. The motion judge dismissed the motion on the basis that the City may owe a duty under the FFPPA, and that it was therefore not plain and obvious that Mr. Rausch's claim was doomed to fail. The majority of the Divisional Court dismissed the City's appeal from the motion judge's order and the City, with leave, appeals that decision to this court.