Court of Appeal for Ontario
Before: Rosenberg, Goudge and Feldman JJ.A.
Between:
Lorne Taylor
Plaintiff (Appellant)
and
Bobby Allard and Joyce Allen and Robert James Allen
Defendants (Respondent)
Counsel:
Darcy W. Romaine, for the appellant
Jack R. Armstrong, for the respondent, Robert James Allen
Heard: Monday August 9, 2010
On appeal from the judgment of Justice C. Marchand of the Superior Court of Justice dated March 13, 2009, with reasons reported at 2009 CanLII 10986 (Ont. S.C.).
Reasons for Decision
1On July 29, 1995, the appellant Lorne Taylor attended a party held by Bobby Allard and Joyce Allen at their residence in East Gwillimbury. They rented the property from the respondent Robert Allen, Joyce Allen’s son. The respondent did not live on the property, nor did he attend the party.
2As found by the trial judge, the rental agreement provided that, as tenants, they “would reside on the property and pay all of the costs therein in lieu of rent”. The appellant acknowledges that the trial judge appears to have meant that the rental agreement unburdened the landlord of any maintenance obligations.
3Sometime earlier, the respondent had built a fire pit at the rear of the property, ringed with partially submerged cinder blocks. The evening of the party, a substantial fire was built in the fire pit, supervised by Mr. Allard.
4The appellant, who had been drinking for a good part of the day, arrived at the party late in the evening in a drunken condition. He joined the guests around the bonfire. He testified that about half an hour after his arrival, two women started fighting, causing him to start backing up. He tripped over the cinder blocks, fell into the fire pit, and was badly burned.
5The appellant sued the tenants and the landlord, the respondent Robert Allen, for the injuries he suffered. At trial his damages were assessed at $265,000. That amount is not at issue in this appeal.
6The trial judge found that, for the purposes of the Occupiers’ Liability Act R.S.O. 1990, c. O.2 (the OLA), the cinder blocks ringing the fire pit could constitute a danger. At para. 41 of his reasons, he concluded that “at the time of the incident, the bonfire itself had allowed itself to be extinguished thereby leaving a very hot unlit area, surrounded by cinder blocks that could trip such [a] person as the plaintiff.” These findings are not contested in this appeal.
7The trial judge found the tenants to be occupiers of the premises for the purposes of the OLA. Pursuant to s. 3 of the OLA, they were therefore responsible to the appellant for permitting the danger that caused him to trip and fall into the fire pit. The trial judge held them liable for 50% of the damages suffered by the appellant, which he split equally between both tenants.
8The trial judge also found the appellant to be 50% at fault for his own damages, a finding the appellant does not contest in this appeal.
9However, the trial judge held that the respondent landlord owed no duty of care to the appellant, and dismissed the action against him. The trial judge found that the respondent had no control over the premises, had no say in the operation of the property, and no control over the party, the guest list, or whether the fire was built that night. He concluded that in the circumstances the respondent owed no duty of care to the appellant. His reasoning is set out in full at paras. 35 and 36 of his reasons:
[35] In the circumstances, I find that section 8 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 provides a liability of the landlord to a guest of a tenant only if there is an actionable claim by the tenant, this defendant’s co-defendants against the landlord.
Kim v. Thammayong 2007 CanLII 52791
Perez v. Roca et al 2003 CanLII 35998.
[36] In the circumstances, I find that the defendant, Robert James Allen, owed no duty to the plaintiff Taylor and that the action against him should be dismissed.
10The trial judge’s reasoning appears to begin with the finding that the respondent had no control over the premises, and since he was not in physical possession of the premises either, he did not meet the definition of “occupier” in s. 1 of the OLA and therefore had no duty of care to the appellant under s. 3 of the OLA.
11The trial judge then turned to s. 8 of the OLA which reads as follows:
Obligations of landlord as occupier
- (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
Idem
(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.
Definitions
(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.
Application of section
(4) This section applies to all tenancies whether created before or after the commencement of this Act. R.S.O. 1990, c. O.2, s. 8.
12Section 8(1) imposes a duty of care on the landlord to any person coming on to the property where the premises are occupied under a tenancy in which the landlord is responsible for the maintenance or repair of the property. This section applies whether or not the landlord is found to be an occupier. Section 8(2) adds a second requirement, namely, that only if the landlord’s default is such as to be actionable at the suit of the tenant will the landlord’s default constitute a breach of the landlord’s duty under s. 8(1).
13The trial judge’s reasons clearly reference s. 8 and its requirements in finding that the landlord owed no duty of care to the appellant. While the trial judge does not explain why the requirements of s. 8 are not met in this case, this conclusion appears to rest on his finding that the rental agreement relieved the landlord of all maintenance obligations. In this court, the respondent suggested no other basis.
14The reasoning seems to be that the rental agreement rendered this a tenancy under which the landlord is not responsible for the maintenance or repair of the property, so that s. 8(1) was not engaged. Further, the rental agreement would render the landlord’s default not actionable by the tenants under s. 8(2) because it gives the tenants complete responsibility for maintenance of the premises. Hence, the reasoning would go, the respondent had no duty to the appellant under s. 8(1) of the OLA.
Issues and Analysis
15In this court, the appellant attacks the finding of the trial judge that the respondent owed him no duty of care. He raises three arguments.
16First, the appellant points out that the respondent explicitly admitted in his statement of defence that he was at all material times an occupier of the premises within the meaning of the OLA, and was responsible for the care, control, and maintenance of the premises. At no time did he withdraw this admission. Indeed, the respondent does not contest that in this appeal. The trial judge makes no reference to this admission in his reasons for judgment.
17The consequence of this admission is that the respondent must be taken to have the duty of care to the appellant that s. 3(1) of the OLA imposes on an occupier. In failing to find this, the trial judge erred.
18The trial judge concluded that the tenants were liable to the appellant for breach of the duty owed by occupiers under s. 3(1) of the OLA to any person coming on to the premises. The tenants permitted the danger constituted by the cinder blocks surrounding the fire pit to continue. Particularly given that he also created this danger, the same reasoning renders the respondent landlord in breach of the duty he has to the appellant as an occupier under s. 3(1) of the OLA for permitting the same danger. Thus, in my view, the respondent’s admission, together with these findings of fact by the trial judge, necessitate the conclusion that the respondent is liable to the appellant for breach of his duty as occupier under s. 3(1) of the OLA.
19Although the appellant’s first argument is enough to dispose of the appeal, I propose also to deal with the appellant’s second argument. The appellant says that in giving effect to the rental agreement that relieved the respondent of maintenance obligations as the basis for finding that the requirements of s. 8(1) and (2) of the OLA were not met, the trial judge erred in ignoring s. 94(1) and s. 80(1) of the Landlord and Tenant Act R.S.O. 1990 c. L. 7 (the LTA). Those sections impose a statutory duty on a residential landlord to maintain the premises, a duty that the landlord cannot escape by contract.
20I agree with the appellant. Sections 94(1) and 80(1) of the LTA read as follows:
(1) A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and despite the fact that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.
(1) This Part applies to tenancies of residential premises and tenancy agreements despite any other Act or Parts I, II or III of this Act and despite any agreement or waiver to the contrary except as specifically provided in this Part.
21Section 94(1) imposes a statutory responsibility on the landlord of residential premises to maintain and repair the premises. Section 80(1) provides that this responsibility prevails, despite any agreement or waiver to the contrary. See Phillips v. Dis-Management (1995) 1995 CanLII 7079 (ON SC), 24 O.R. (3d) 435 per Sharpe J. (as he then was).
22Since this was a residential premises, this statutory duty applied to the respondent landlord and could not be removed by his rental agreement with the tenants. Nor could the rental agreement serve as a defence to the respondent in a suit brought by the tenants if the danger created by the cinder blocks had caused them harm.
23The combined effect of ss. 94(1) and 80(1) of the LTA is therefore that, for the purposes of s. 8(1) of the OLA, these premises were occupied under a tenancy in which the landlord is responsible for the maintenance and repair of the premises. Equally, for the purposes of s. 8(2), the rental agreement could not prevent the landlord’s default being actionable at the suit of the tenants. As a consequence, the respondent landlord had a duty of care under s. 8(1) of the OLA, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
24In other words, s. 8(1) imposes on the respondent the same duty of care to the appellant that the respondent would have under s. 3 of the OLA as an occupier for a danger arising from his failure to maintain the premises.
25In summary, therefore, the respondent not only had a duty of care as occupier to the appellant under s. 3 of the OLA. He had a duty of care to the appellant under s. 8(1) of the OLA. The trial judge therefore erred in finding that the respondent owed no duty of care to the appellant.
26In my view, the findings of fact by the trial judge also necessarily entail the conclusion that the respondent breached his duty of care to the appellant imposed by s. 8(1) of the OLA. Particularly given that he created the danger in the first place by installing the cinder blocks surrounding the fire pit, by permitting the danger to continue the respondent landlord failed in his statutory responsibility to maintain the premises. The danger that caused the appellant harm arose from this failure. The respondent therefore breached his duty of care to the appellant under s. 8(1) of the Act.
27I conclude that the respondent landlord breached his duty of care to the appellant, both his duty under s. 3 of the OLA as an occupier and his duty under s. 8(1) of the OLA as a landlord with the responsibility to repair and maintain the premises. Taking into account the appellant’s contributory negligence, assessed by the trial judge at 50%, the respondent is therefore responsible for 50% of the damages suffered by the appellant jointly and severally with the tenants. I would split the fault between the landlord and the two tenants equally, just as the trial judge did with the tenants. Each of them should be found at fault for one third of 50% of the appellant’s damages.
28In light of the conclusions I have reached, it is unnecessary to deal with the appellant’s third argument advancing an error in fact finding by the trial judge.
29The appeal is therefore allowed and the judgment below varied to reflect these reasons.
30The appellant is entitled to his costs on a partial indemnity basis fixed at $5000 inclusive of disbursements and applicable taxes.
RELEASED: SEP 17 2010 (“S.T.G.”)
“S. T. Goudge J.A.”
“I agree. M. Rosenberg J.A.”
“I agree. K. Feldman J.A.”
