COURT OF APPEAL FOR ONTARIO
CITATION: Youssef v. Misselbrook, 2020 ONCA 83
DATE: 20200204
DOCKET: C66176
Lauwers, van Rensburg and Roberts JJ.A.
BETWEEN
Amir Youssef a disabled person by his litigation guardian the Office of the Public Guardian and Trustee
Plaintiff (Respondent)
and
Margaret Misselbrook, 693316 Ontario Limited o/a Toronto Redi-Mix Limited, Regional Municipality of Durham and Jevco Insurance Company
Defendants (Appellant)
Alan L. Rachlin, for the appellant
C. Kirk Boggs and Darcy Romaine, for the respondent
Heard: January 20, 2020
On appeal from the order of Justice Gregory M. Mulligan of the Superior Court of Justice, dated October 26, 2018, with reasons reported at 2018 ONSC 6409.
REASONS FOR DECISION
A. OVERVIEW
[1] The appellant is the only remaining defendant in this action. It appeals from the motion judge’s dismissal of its motion for summary judgment and the granting of judgment in favour of the respondent. The motion judge reserved the issue of damages for trial.
[2] The respondent sustained serious injuries when he lost control of his motorcycle after colliding with one of five donkeys that had escaped from the appellant’s tenanted rural property.
[3] The motion judge found that the donkeys had escaped from the appellant’s property. Specifically, he determined that “the force of a mule or mules pried the gate apart allowing their exit from the property to Winchester Road where they were observed at the time of the accident.”
[4] The motion judge concluded that the appellant was negligent as a residential landlord of rural property because it had no policy or procedure in place to inspect or repair the fences although it was its obligation to do so. Implicit in the motion judge’s reasons was the finding that the appellant was negligent in permitting an unlocked gate through which animals could and did escape on to the adjacent roadway. As a result, the appellant was responsible for the negligence of its tenant, Mark Burnfield, who had allowed his animals to escape and create a public nuisance on the roadway. Mr. Burnfield had been noted in default and did not participate in the motion or the appeal.
B. ANALYSIS
[5] The appellant takes no issue with the motion judge’s findings of fact but submits that the motion judge made the following reversible errors:
i. He erred in applying the Residential Tenancies Act, 2006, S.O. 2006, c. 17 to the tenancy agreement between the appellant and its tenant. Absent the provisions in the Residential Tenancies Act, he erred in finding that the appellant owed a duty of care for nonfeasance.
ii. He erred in his causation analysis to the extent that he equated a failure on the part of the appellant to ensure the gate was locked with a failure to keep the fence in good structural repair and free from hazard.
iii. He erred in setting the standard of care too high for a landlord not in possession.
iv. He erred in granting judgment in favour of the respondent without determining the question of contributory negligence.
[6] Dealing first with the question of the appellant’s liability as a landlord, we are not persuaded that the motion judge made any reversible error. The particular facts of this case drove the motion judge’s causation analysis, which is reasonable and subject to appellate deference.
[7] The appellant admitted that it was responsible for the condition of the fence. The evidence establishes that in furtherance of this responsibility, the appellant inspected and repaired the fence over the course of the tenancy. This is not an admission that the appellant sought to withdraw. As a result, it makes no difference to the outcome of the motion or this appeal whether the tenancy is treated as a residential or a commercial tenancy or whether the appellant was a landlord in or out of possession of the tenanted property. In either case, based on its admission, the appellant’s duties to maintain the structural integrity of the fence are the same.
[8] Further, the motion judge made no error in finding that it was negligent for the appellant to have failed to carry out regular inspections and notice that the gate immediately adjacent to a roadway was unlocked. The unlocked gate rendered the fence deficient for its purpose of keeping livestock enclosed within it. There is no issue that livestock on a roadway constitutes a potential hazard to motorists. The unlocked gate created this hazard in that it served as a breach of the fence through which livestock could and did escape on to the roadway. Therefore, in the circumstances of this case, it was open to the motion judge to conclude that the appellant had failed in its undertaken duty to secure the structural integrity of the fence.
[9] We agree that the motion judge does not appear to have dealt with the question of contributory negligence. His reasons do not address this issue. However, to be fair to the motion judge, this was not the focus of the parties’ submissions before him on the appellant’s summary judgment motion. In consequence, the issue of contributory negligence, along with damages, is remitted for determination at trial.
C. DISPOSITION
[10] For these reasons, we allow the appeal in part and remit the issue of contributory negligence to trial along with the issue of damages. We otherwise dismiss the appeal.
[11] The results on this appeal are mixed. Accordingly, the costs of this appeal are to the successful party in the cause.
[12] The motion judge’s order provides that the costs of the motion shall be agreed on or determined by the motion judge. We were not advised how or if costs were agreed on or determined. We therefore make no order respecting the costs of the motion.
“P. Lauwers J.A.”
“K. van Rensburg J.A.”
“L.B. Roberts J.A.”