International Law

Tenant?s House Party Guest Falls into Bonfire and Landlord Held Partially Liable in Taylor v. Allen (2010)

By Cris Best

If a landlord builds a bonfire pit and a guest at a tenant?s house party is injured in the bonfire, can the landlord escape liability? No, according to the Ontario Court of Appeal decision in Taylor v. Allen, 2010 ONCA 596. The landlord owed a duty of care under those circumstances and was partially liable under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (?OLA?). The appeal court decision overturned an earlier and opposite ruling by the Ontario Superior Court of Justice in Taylor v. Allard, 2009 CanLII 10986.

An Very Intoxicated Darcy Romaine Attends a House Party and Falls into a Bonfire

Robert James Allen is the owner of a property that he rented to his parents (he has never lived there). Some time ago he built a large bonfire pit on the 2-acre property. One night, while he was out of the country, his tenants held a house party and a bonfire burned for the duration of the get-together. Darcy W. Romaine attended and by all accounts was very intoxicated. In fact, his blood alcohol concentration was measured at 2.85, more than 3.5 times the legal limit while driving.

Late in the evening a fight broke out between two women. Mr. Romaine, backing away from the fight, tripped over cinder blocks bordering the fire pit and landed on a mattress burning in the fire. His brother tried to yank him out by the arm but the skin on Mr. Romaine’s arm came off and he fell back in. Eventually he was rescued and taken to a hospital.

All in all he suffered second and third degree burns to his left arm and back. Following the tragic incident, Mr. Romaine underwent multiple medical procedures and has since been left with permanent damage which has hindered, but not completely restricted, his ability to resume work as a labourer and roofer. With not even a high school education his alternative employments prospects are limited.

The Legal Framework

The trial court assessed damages for Mr. Romaine in the amount of $265,000, including for past and future income loss. A primary issue before the Ontario Superior Court of Justice was whether or not the landlord, Mr. Allen, owed a duty of care to Mr. Romaine as provided for under the OLA. If so, he was partially liable for the damages.

In part, the OLA codifies the common law duty of care that an “occupier” of a premise owes to those who enter their premises. ?Occupier? is defined under the OLA to include ?a person who is in physical possession of premises, or? a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises?? Per s. 1 of the OLA, a ?premise? is defined in part as “lands and structures? designed or used for residence, business or shelter…”

Section 3 of the OLA states that “[a]n occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”

Section 8 codifies the landlord?s responsibilities:

(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?

(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.

The Lower Court Finds the Landlord Not Liable

While the lower court decision is short on specifics, the written decision suggests the following reasoning:  control is a required element for meeting the definition of ?occupier? under the OLA. Mr. Allen did not have control of the premises, therefore he was not an ?occupier? and as a result he did not owe a duty of care as mandated under s. 3. Next, the landlord liability provision under s. 8 did not apply because ss. 8(2) required the ?landlord?s default? to be actionable at the suit of the person entitled to possession of the premises,? a standard which the court felt was not met.

In disposing of the s. 3 issue Justice Marchand remarked:

[A]lthough the legal owner of the premises in question, he had no control over the lands and premises in question. He had leased the lands and premises to his parents, his co-defendants, and had no say in the administration and operation thereof. He had no control over the parties organized by his parents, had no control over the invitee?s list, had no control over whether or not a fire were to be open in the bonfire area, and that at the time of this particular party, he was ?not in the country?.

Justice Marchand ruled that under the circumstances s. 8 was also not applicable. Again, for the landlord to be found liable under s. 8 it would have to be established that the tenant had an actionable claim against the landlord if the tenant fell into the fire. For example, in Musselman et al v. 875667 Ontario Inc. et al, 2010 ONSC 3177, the injured plaintiff fell through a staircase at a residence of a friend who was the occupying tenant. In determining the landlord’s liability under s. 8, the Ontario Superior Court of Justice ruled that since the staircase was erected by the tenant “there could be no action for the unsafe staircase…” by the tenant against the landlord. In the present case, and without any elaboration on his reasons, Justice Marchand ruled that s. 8 did not apply, exempting Mr. Allen from liability. Mr. Romaine was found to be 50% liable and the tenants 25% each.

The Ontario Court of Appeal Finds the Landlord Partially Liable

As noted by Justice Goudge of the Ontario Court of Appeal (Justices Rosenberg and Feldman concurring), the written reasons of the lower court were inadequate. First, Justice Marchand did not explain why Mr. Allen escaped liability under s. 8 and, second, he also failed to acknowledge Mr. Allen?s characterization of his being personally in ?control of the premises.? In fact, this only becomes apparent after reading the appeal court decision.

According to Justice Goudge, the lower court erred when it decided that Mr. Allen did not have control over the premises and “was not in physical possession of the premises.” The admission that he was responsible for the premises meant that he was an ?occupier? under s. 3 of the OLA. Furthermore, he built the bonfire pit and the ?danger constituted by the cinder blocks surrounding the fire? (the tripping hazard) was as much as his responsibility as the tenants. Hence, he owed a duty of care to Mr. Romaine.

While the s. 3 determination was sufficient to dispose of the appeal, Justice Goudge observed that there would likely have been an actionable claim by the tenants against the landlord if a tenant had fallen into the fire. Mr. Allen built the bonfire pit, and as a result could not have escaped liability under s. 8. More specifically, even if a precisely worded agreement delineating the scope of the landlord-tenant relationship existed, Mr. Allen still had a responsibility under s. 94(1) of the OLA to maintain “the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards…” and this obligation could not have been contracted out of as mandated under s. 80(1) of the OLA. In the end, Mr. Romaine was found 50% liable and the tenants and landlord were each liable for one-third of 50%.

Conclusion

In my opinion, the reasoning of the Court of Appeal was sound. Considering that Mr. Allen constructed the bonfire pit with surrounding cinderblocks, it stands to reason that he would attract the same liability as the tenants who started the fire.

Yet, an initial review of the lower court decision at first suggests that the upper court may have gotten it wrong. This owes only to the fact that Justice Marchand failed to adequately articulate his written reasons and also left out crucial and determinative information regarding the defendant landlord?s own characterization of his role over the house. As noted by Justice Goudge:

[Mr. Allen] 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.

As mentioned, a consideration of the s. 3 issue was sufficient to dispose of the appeal. Yet, Mr. Allen also assumed liability under s. 8. Again, to be found liable to a third-party under s. 8 the tenants would have to have had an actionable claim if they had suffered the same fate as Mr. Romaine. Clearly they would have. In the end, the tripping hazard, constructed by Mr. Allen, was determinative.

Full post as published by The Court on October 05, 2010 (boomark / email).