Summary

39100

693316 Ontario Limited o/a Toronto Redi-Mix Limited v. Amir Youssef a disabled person by his litigation guardian the Office of the Public Guardian Trustee

(Ontario) (Civil) (By Leave)

Keywords

Torts — Negligence — Duty of care — Nuisance — Animals — Motorcyclist injured after colliding with escaped donkey on roadway — Tenant negligent in having failed to lock gate on fence surrounding property — Whether landlord also negligent for permitting unlocked gate to allow animals to escape, and failing to inspect and repair gate and fence — Whether Court of Appeal erred at law by holding that landlord not in physical possession of property, owed duty of care to ensure tenant’s animals did not escape from premises — Whether Court of Appeal erred at law by holding that landlord breached duty of care by failing to notice tenant failed to lock gate in fence surrounding leased property and thus permitting tenant's donkeys to stray onto roadway and causing accident — Whether Court of Appeal erred in finding unlocked gate rendered otherwise sound fence “deficient” — Whether Court of Appeal’s decision imposes novel, impractical and unreasonably onerous duty of care upon landlords to inspect, supervise and remedy tenants’ activities — Whether relationship between landlord and tenant and/or relationship between landlord and members of general public gives rise to required special link or proximity to create positive duty to act — Whether observations expressed in Childs v. Desormeaux, 2006 SCC 18, with respect to established categories of proximity, and relevant jurisprudence, militate against recognition of a duty of care — Whether Court of Appeal’s decision inconsistent with prior jurisprudence holding that duty of care to inspect and supervise tenant’s business activity not triggered by fact that landlord leased part of land to business, thus raising confusion and unpredictability with respect to when landlord owes duty of care — Whether Court of Appeal’s decision of national importance due to prevalence of rented farmland across country — Whether Court of Appeal’s rationale could also be interpreted to impose upon urban landlords general duty of care to public to prevent harm resulting from escape of tenants’ domestic animals — Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 5, 20 — Ontario Regulations 517/06: Maintenance Standards, s. 8.

Summary

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The respondent, Mr. Amir Youssef, was riding his motorcycle when he collided with a donkey on a provincial highway. He lost control of his motorcycle and suffered serious injuries. The animal (and several others) had escaped from a nearby farm property, by forcing their way through a fence gate that had no lock. The property was owned by the applicant, 693316 Ontario Limited, o/a Toronto Redi Mix Limited (“Redi Mix”), and was rented to a tenant, Mr. Mark Burnfield. Mr. Youssef, through his litigation guardian, sued both the tenant and the landlord for negligence. The landlord, Redi Mix, also brought a third party claim against its tenant, Mr. Burnfield. The latter did not defend either action, and was noted in default for both claims. Prior to trial, Redi Mix brought a motion seeking summary judgment to dismiss the negligence claim against it; Mr. Youssef in turn brought a motion seeking to strike Redi Mix’s motion. A motions judge dismissed Redi Mix’s motion for summary judgment, and ruled in favour of Mr. Youssef. The judge found Redi Mix negligent in its role as landlord, having failed to inspect and repair the fencing and the gates on the property and keep them maintained, for which it had specifically admitted it had an obligation to do. The Court of Appeal dismissed Redi Mix’s appeal on the finding of negligence.

Lower Court Rulings

October 26, 2018
Ontario Superior Court of Justice

2018 ONSC 6409 ;, CV-16-95039 ;
Motion for summary judgment filed by Redi Mix — dismissed; Judgment against Redi Mix on the issue of liability (damages issue remitted to trial)
February 4, 2020
Court of Appeal for Ontario

2020 ONCA 83 ;, C66176 ;
Appeal by Redi Mix — allowed in part (issues of damages and contributory negligence remitted to trial); appeal otherwise dismissed