45 O.R. (2d) 141
Ontario High Court of Justice Smith J.
February 8, 1984.
E. Allen, for plaintiff.
W. T. McGrenere, Q.C., for defendant.
1 SMITH J.:– This action can be described as involving occupier liability whether it is made to sound in contract, tort or is based on the Occupiers’ Liability Act, R.S.O. 1980, c. 322. The plaintiff, a registered nurse, was a tenant of the defendant under a written lease. She was residing alone in apartment No. 2410 in the Sheppard Centre at 2 Forest Laneway. She was also renting parking facilities in the underground garage adjacent to and being a part of the premises.
2 On May 12, 1981, at about 8:45 p.m., while parking her car, she was brutally attacked by one Howell who was later apprehended and confessed to the crime. He was not in any way connected with the defendant.
3 The lease makes no specific mention of the kind of security the lessor was to provide. There is, however, a general exemption clause which reads as follows:
The Landlord shall not in any event whatsoever be liable or responsible in any way for
117.(a) any personal injury or death that may be suffered or sustained by the Tenant or any employee of the Tenant or any member of the Tenant’s family, his agents or guests, or any other person who may be upon the rented premises or the premises of the Landlord; or
(b) any loss of damage or injury to any property including cars and contents thereof belonging to the Tenant or any member of the Tenant’s family, or to any other person while such property is on the rented premises or on the premises of the Landlord; or
119. (c) without limiting the generality of the foregoing, any damages to any such property caused by steam, water, rain or snow which may leak into, issue or flow from any part of the rented premises or the premises of the Landlord or from the water, steam, sprinkler or drainage pipes or plumbing works of the same or from any other place or quarter; or
(d) any damage caused by or attributable to the condition or arrangement of any electrical or other wiring; or
(e) any damage caused by anything done or omitted to be done by any tenants of the Landlord.
4. The plaintiff was security conscious. She said she discussed with Mr. Brown, an authorized representative of the defendant, the fact that she was looking for secure accommodation and that her work would require her to return home at all hours of the evening. Mr. Brown took her on a tour of the parking area, of the laundry room and of the front entrance. He stated that the defendant company had cameras installed. It is not clear whether he was referring to the garage area specifically. The plaintiff may well have thought that he was. She did not observe any cameras in the garage in the four months that she occupied the apartment. In other words, it can be assumed that she knew at some point that there was no monitoring in the garage through cameras, although there were security men on staff. She was told by Brown that there was only one entrance to the P1 parking area which she thought was reserved for residential parking. She always understood that there was only one door into the garage. There were a number of exit doors through which entry could not be gained unless they were for some reason left open.
5. The plaintiff was not allotted a specific parking spot on the P1 level of the garage. She could use any one of the spaces provided.
6. The sole outside entrance for cars to the P1 area, was equipped with a device whose mechanism for the opening of the door was triggered by a card in the possession of tenants only. Once inside the parking premises, there was no designation, either for residential or for commercial parking, separating one from the other. There had been a barrier between the two prior to the plaintiff ‘s occupation of the premises. There was none at the time. The plaintiff was in the habit of going straight to a parking space near the door through which she could only gain entry to her building with a key. She followed her normal practice on the day of the assault.
7. It is clear that in a strict sense, or indeed in any sense, the parking garage was not secure. In addition to the fact that there were exit doors that were not always closed, there were a few commercial vehicle entrances. Access to the garage could also be had with the greatest of ease by anyone walking through the mall and making use of the shuttle area shown on diagram ex. 5. It was equipped with elevators and stairs. The access was available at all times except after 2:00 a.m. when the mall closed. There was no evidence of how the attacker came to be on the premises that evening. But it is clear from the above summary that very little ingenuity on his part was required.
8. The manager, Mr. Bennett, candidly admitted that there were representations regarding security made in the form of advertisements and orally when the plaintiff applied. He admitted that security was a selling point; that the majority of residents were single women and senior citizens who were attracted to the complex in part because of the security arrangements. In fact, the defendant can be seen to have been clearly security conscious in its installation of some 38 television-monitoring devices. They were mostly focused on the commercial entrances and exits. The front entrances to the residential towers were and are fairly well secured. The panels in the entranceway contain the name of each tenant only, without a corresponding apartment number. The plaintiff said she decided to apply to reside in the complex because her security fears had been allayed by what was represented to her at her initial encounter with the defendant’s representative. The court has no reason to doubt her evidence in this regard.
9. The defendant recognizes a duty to secure. It argues that the obligation was to secure within reasonable limits thereby giving security a limited meaning. It went on to contend that the complex had been free of problems in six years. There was consequently no reason to foresee what occurred or to think that the system would prove inadequate.
10. The total parking area, as the plaintiff later learned, was huge. It included 30,000 sq. ft. of parking on P1, P2 and P3 levels and additional parking facilities on the concourse level which coincided with the mall level. The total parking area served the occupants of two commercial towers, of two residential ones, including the plaintiff ‘s and the patrons of the mall.
11. One security guard only was assigned to patrol the entire parking area every hour. It was a large area to be sure, to be patrolled by one guard in the space of one hour. He did not always complete his tour of inspection in any case for he was called elsewhere on occasion and also had to check all the exit doors to make certain that they were securely shut.
12. The question now relates to the standard of care to be applied in the circumstances existing here.
13. The relevant provisions of the Occupiers’ Liability Act are as follows:
134. 3(1) An 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.
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.
(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude his duty.
14. I will turn to the defendant’s duty in contract in the course of disposing of the questions raised by the exclusionary clause. As far as the common law is concerned, it may be said to have been superseded by the Act, but only in the sense of the Act having abolished the distinction between invitees and licensees. The case-law had of itself gone a long way in that direction. The question which s-s. 3(1) directs the court to ask itself, “Did the defendant take reasonable care in all the circumstances to ensure that persons were reasonably safe while on the premises both in respect to their condition and regarding the activities carried on therein”, is not at all different from the questions based upon M’Alister (or Donoghue) v. Stevenson,  A.C. 562, and the cases following it. Who is my neighbour? Foreseeability and causation remain with us as well.
15. I have concluded, not without some difficulty, for the argument advanced by the defendant was not devoid of merit — it was urged with some force that the net result of a finding of liability against the landlord would be to make it an insurer — that the landlord failed in its obligation to this plaintiff to make the premises safe for her. The assault in my view was a reasonably foreseeable one and ought to have been guarded against in this case.
16. The court must place itself in the position of the landlord. The company knew it was dealing with an underground garage in a large urban centre in which the unwary in recent years have fallen prey in more than a number of isolated cases, to sexual and other kinds of assaults. To the knowledge of the landlord, the garage premises were virtually and indiscriminately wide open to the public at large. The plaintiff was concerned about safety. She received certain assurances which she accepted and upon which she acted. In the circumstances, a high obligation was fixed upon the landlord. If that obligation were standing alone and there was a total absence of representations, given the particular conditions obtaining at this complex and given the kind of security provided by the landlord, it might conceivably be difficult to find acts or omissions that would attract liability. That is not the situation that presents itself to me.
17. The representations distinctly placed a higher burden upon the landlord. It was obligated to make good on its assurances and it failed in this regard. It took no effective steps to protect the residential tenants entering from the garage. I repeat that the plaintiff ‘s concerns had been clearly expressed. She was enticed to these premises and drawn into a contractual relationship by reason of the representations made in the advertisements, by reason of the reputation acquired by the complex and of the oral conversations at the time the plaintiff made her application to lease. The security measures were totally inadequate. Patrolling was insufficient. Lighting was dim. There was no television monitoring of the parking area.
18. It almost seems as if the security of the residential tenants entering their premises from the garage, was lost in the shuffle. The shuttle itself was designed for the convenience of the patrons of the mall. Most of the television-monitoring devices were mainly directed to commercial areas as stated, as well as the front entrances to the residential buildings. The parking garage was neglected.
19. The plaintiff testified that she did not know of the unsafe condition of the garage. It was sought to impute such knowledge to her. In my view she was only really aware of one entrance. I accept her evidence in that regard. At any rate, she most certainly did not have the kind of appreciation of the risk that would permit volenti to apply.
20. The negligence of the defendant consisted of failing to reasonably secure the garage premises once having represented their safe condition or alternatively, of allowing the plaintiff to be lulled into a false sense of security. “You are safe.” The fact that security, such as it was, had worked for six years, was due to chance. I do not accept that the evidence fell short of proving that the aggressor’s presence was due to lack of security. The plaintiff does not need to show precisely how Howell came to be on the premises. He was bent on criminal activity. He engaged in further and similar criminal activity before he was apprehended at or near the premises some months later. The probabilities are that proper security would have prevented this unfortunate assault as would have a warning to the plaintiff. A knowing and conscious plaintiff could have requested escort services as others had on occasion or exercised greater care or taken up residence elsewhere.
21. Liability under the Occupier’s Liability Act can be restricted according to its terms but the restriction must be specific and brought to the attention of the person whom the legislation intends to protect. There is no reason why cases such as Canada Steamship Lines Ltd. v. The King,  A.C. 192, should not continue to apply.
22. The exclusionary clause in this lease did not purport to limit liability in respect of negligence and certainly not in respect of negligence alone. Mr. Bennett, the defendant’s manager, accepted counsel’s suggestion that the landlord had not intended by use of that clause to be exonerated from a breach of duty to take care. The plaintiff admits that she read the lease from beginning to end. She did not think the exemption clause derogated in any way from the representations made to her that she would be safe. The exclusionary clause must be construed against the defendant.
23. I have chosen thus far to found liability upon the conduct of the landlord which in my view fell below the standard dictated by the circumstances and particularly by the representations that induced the plaintiff to reside at this complex. The court can easily choose to resort to the defendant’s contractual obligations it assumed when these parties were brought together as the parties both understand the obligations to be.
24. The three obligations, i.e., as they arise at common law under statute or in contract, are not mutually exclusive. In this instance, it might be well to emphasize the contractual relationship and I do so. The circumstances, however, in my view, give rise to tortious (in the common law definition) and to statutory liability as well. There is no need to make neat distinctions when defining the nature of the obligations. It is quite sufficient that they did exist and that they were breached.
25. I now proceed to assess the damages. The specials have not been disputed. They are made up of moving expenses, including transfer of telephone, cleaning of car, some prescription drugs and lost clothing. The evidence supports the total claimed of $363.90.
26. The incident has already been described. It lasted about five minutes. The plaintiff was struck several times about the head with a blunt instrument. She bled profusely from several scalp wounds.
27. There were three lacerations across the top of the scalp measuring 11/2, 21/2 and 3/4 ins., respectively, which required 20 nylon sutures. These were inserted at Sunnybrook Hospital to which the plaintiff was transported by ambulance on the night in question. There were other smaller lacerations. There was also a large area that was observed behind her left ear and down her left neck with obvious swelling, tenderness and discoloration. A dorsal contusion to the right hand of some proportion was evident, with swelling and tenderness, especially over the right third finger. Fortunately, there were no fractures.
28. Understandably, there was a great deal of pain and suffering. The scalp remained extremely tender for some time. The finger hurt. There were headaches. Miss Allison plays squash and still experiences a tingling sensation on the crown of the head when she plays. Her injured finger gets cold quickly in the winter- time.
29. This 36-year-old lady is fortunate indeed that she escaped with her life. The attack was vicious. The circumstances surrounding it must have been terribly frightening. One week following it, she was still emotionally upset, tremulous, shaky, weeping easily and speaking with an anxious cracking voice. Although she spent only a few hours in hospital, and lost only two days’ work, there remains a certain relatively slight degree of physical damage which will last for an extended period. It is relatively mild or perhaps it should be described as being mild to moderate. The psychological shock, though, was severe and there are permanent emotional scars. These would be more serious had we been dealing with a weaker and less brave lady. She is to be commended. The defendant is fortunate to have to deal with a thick-skulled plaintiff. The assault I should say, was in part at least, sexual in nature, although no intercourse or attempt at intercourse took place. She became a recluse, she said, fearing underground garages and elevators. Her heart palpitates when she hears running behind her. She found her ability to relate in a normal way to men to have been impaired. What remains of the psychological sequelae was estimated by the plaintiff at 75%. I appreciate that percentages in this kind of situation are but a convenient way of describing in a global sense how one still feels and reacts as a result of an experience of the kind which I have described. I am confident she will survive the ordeal well in the long term.
30. I have determined that her general damages ought to be fixed at $18,000.
31. There is nothing in the evidence to justify aggravated or exemplary damages against the landlord. The author of this crime, of course, is not a party to these proceedings. There will be judgment for $18,363.90. It seems to me that costs should follow the event.
Judgment for plaintiff.
Malia Lynn Cater by her Guardian Ad Litem, Katherine Cater and
Randall William Cater, Plaintiffs, and
Ghag Enterprises Ltd. and Strata Corporation-K68, Defendants
Kamloops Registry No. 15490 B.C.J. No. 656
British Columbia Supreme Court
Kamloops, British Columbia
Heard: February 12, 1991
Judgment: March 14, 1991
Counsel for the Plaintiffs: Roy M. Kahle.
Counsel for the Defendant, Ghag Enterprises Ltd.: S. Dev Dley.
Counsel for the Defendant, Strata Corporation -K68: Frank Scordo.
HOUGHTON J.:– At the commencement of the trial, counsel advised that by an order of the court only the question of liability was to be heard on this trial with a separate trial on the issue of quantum.
Mr. and Mrs. Cater moved into unit 43 of Summit Garden Court, a condominium strata development at 1570 Freshfield Road, Kamloops, B.C. on July 31, 1989. They had not seen the unit before they moved in but had rented it through Mr. J. R. Armstrong, the agent of the defendant, Ghag Enterprises Ltd. which owned the unit. He told Mr. Cater that the right to parking in the space in front of the unit went with the unit. Mr. Armstrong believed that he had given a copy of the rules and regulations to Mr. and Mrs. Cater but I am satisfied that he did not. Mr. Cater had signed the tenant’s undertaking regarding the Strata Corporation – K68 but had gathered the rules from other sources as did Mrs. Cater. Mr. Armstrong did not recall discussing the driveway with Mr. Cater as he said he would have mentioned it to the manager or the strata corporation and nothing was done. However, I accept Mr. Cater’s evidence that the dip in the parking area was noted and mentioned to Mr. Armstrong on the day they were moving in and mentioned again when Mr. Armstrong checked the premises. When the Caters moved in they found the unit in poor condition with a hole in the balcony, a cupboard door off, and so on.
Mrs. Katherine Cater described “a very large hole in the driveway.” She said one couldn’t miss it as one drove in and she told her husband because she banged the bottom of her new car in it. Mr. and Mrs. Cater had a daughter, Malia, aged eight at the time when they moved into the unit. She was hearing impaired and wore a hearing aid. She was an average student, though she required help. She had previously owned a bike and was a good rider and Mr. Armstrong produced an appropriate bike.
Mrs. Cater said that while she was concerned about her car driving through the hole, she never mentioned it to her daughter and didn’t view it as being a danger to her.
On August 17, 1989, Mrs. Cater was upstairs and asked her husband, who was sweeping the driveway, to call Malia who was out riding her bike. Mr. Cater called her and went on sweeping the driveway. Malia drove into the driveway with a six-yearold riding double behind her. She avoided her father by riding into the depression and fell.
Malia was not called as a witness. Neither Mr. nor Mrs. Cater saw what actually happened. Mrs. Cater said she saw her topple. She quoted Malia as telling her later at the hospital that, “her bike had gone into the hole, pulled, and toppled over.” In cross-examination some questions on her examination were put to Mrs. Cater:
Q. Was she riding her bike before she fell or was she walking her bike down?
117. Now, I’m only going by what she told me in a later date, she said she was getting off her bike, she was pulling in to get off the bike.
288. Q. Oh, I see. So she was coming back from her ride?
A. That’s right, she was going to –
289. Q. All right.
A. – get off.
290. Q. All right. What else did she tell you later on?
117. It depends when- well, I’m talking when she was in the hospital.
119. 291. Q. Yes.
117. I mean I could go on and on. What is it you want to know?
Q. Well, I want to know what she says about how the accident occurred?
A. She mentioned that she was going to get off the bike.
293. Q. Yes.
A. And that’s about it, referring to the accident. She’s –
134. Q. Just that she was going to get off her bike and she fell?
Q. All right. So about one week you asked her what happened?
(a) A. Well, we discussed it.
(b) Q. All right. And she said that she was returning from her bicycle ride, she was getting off when she fell? Yes?
117. Yeah. She said that – yes, I’d say, she was going to get off her bike.
300. Q. Did she tell you what caused her to fall?
A. No, I didn’t
301. Q. So she’s never told you what caused her to fall?
A. No. She knows that she was in- went into the
302. Q. Don’t worry about what she knows.
303. Q. I want to know what she told you.
(i) A. No, she never
(ii) Q. All right. And that’s all she’s told you about the actual accident is what you’ve just told me today; is that correct?
A. I’d say yes.
Mrs. Cater said that the answers to these questions were true.
Mrs. Cater had described the depression as three feet by three feet and four inches or so at its deepest point.
Mrs. Cater agreed that she had told her daughter not to ride double and had warned her to watch out for traffic. She said she had never seen her daughter ride into the driveway. Malia had always walked the bike out or in when she had observed her.
Mr. Holmes, an experienced adjuster, took photographs of the driveway and other areas in the complex which were put in evidence. Mr. Holmes described the depression as extending from five to six feet from the curb and three to four feet wide along the curb and being five inches deep. He said there was a gentle slope to the deepest part of the depression.
Mr. Cater said Malia came when he called her and he went on sweeping and to avoid him she went towards the hole. He suddenly saw her on the ground. He said she passed him and fell, tire into the hole. After he had picked up the little girl who was riding behind Malia he picked her up and realized her leg was badly broken and she was then taken to hospital.
Mr. Cater understood from Mr. Armstrong that the condominium unit included the parking space in front of it. Mr. Cater said his daughter usually stopped before she entered the driveway. He said she was just coming to a stop when she fell. He said they had one or two conversations about the dip ad he had told her not to drive her bike around the hole.
There was no written lease and I am satisfied that Mr. Armstrong, on behalf of the defendant, Ghag Enterprises Ltd., included the driveway parking area in front of unit 43 with unit 43 when he was leasing the premises. He understood that he was to look after any repairs required on the premises on behalf of Ghag Enterprises. He said he would normally tell the manager or the strata corporation about any problems with the driveway.
In my opinion the depression described in the evidence and shown in the photographs, particularly photographs 1 and 2 and 3 of Exhibit #4, show a depression in the paving that is deep enough and sudden enough to be a hazard to a person walking or getting out of a motor vehicle at that point or to a child riding a bicycle. There was no rule forbidding children riding bicycles in the condominium complex although they were warned to stay away from the entrance to the outside street. It was agreed that the individual parking areas in front of each unit are actually common property under the Condominium Act, (1979) R.S.B.C. 61.
Section 34(1)(d) of the Condominium Act reads:
(c) The strata corporation shall
keep in a state of good and serviceable repair and properly maintain common property, common facilities and assets of the strata corporation; and . . .”
The strata corporation falls within the definition of occupier in Occupiers Liability Act, R.S.B.C. 1979, c. 303 which reads:
“1. In this Act occupier’ means a person who is in physical possession of premises; or has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises, and, for this Act, there may be more than one occupier of the same premises; …Mr. Thompson, as I said earlier, understood he was to look after any repairs required on the premises on behalf of Ghag Enterprises and said he would normally tell the manager or strata corporation about any problems with the driveway. He told Mr. Cater he was going to take care of the depression in the driveway and get it fixed. He said if he didn’t tell anyone, nothing would be done.
In Konkin v. Bartel,  B.C.J. No. 1716, Vancouver Registry No. C855911, September 15, 1988, Rowles J., with reference to s. 1 of the Occupiers Liability Act at page 11 and following said:
(c) “DiCastri in Occupiers Liability (1980) examined the statutory definition of ‘occupier’ as it appears in the Ad and concluded that, ‘Essentially, the statutory definition is declaratory of the common law.’
(c) In Hartwell v. Grayson Rollo  1 K.B. 901 (C.A.), Roxburgh J. at 917 referred to a passage from Salmond, as follows:
‘On the issues of negligence I found myself on the statement of law in Salmond on the Law of Torts (10th ed.), at p. 469:
“In dealing with dangerous premises it is necessary to distinguish between the responsibilities of the owner and those of the occupier or possessor. Generally speaking, liability in such cases is based on occupancy of control, not on ownership. The person responsible for the condition of the premises is he who is in actual possession of them for the time being, whether he is the owner or not, for it is he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.
(c) In the leading case of Wheat v. E. Lacon and Co.  1 All E.R. 582 (H.L.), Lord Denning said at p. 593:
‘… wherever a person has a sufficient degree of control over premises that he ought to realize that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is his “visitor.” In order to be an “occupier” it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control …
In Salmond on Torts (14th Edn., 1965) p. 372, it is said that an “occupier” is “he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.” This definition was adopted by Roxburgh J., in Hartwell v. Grayson Rollo (45) and by Diplock L.J., in the present case. There is no doubt that a person who fulfils that test is an “occupier.” He is the person who says, “come in” but I think that that test is too narrow by far. There are other people who are “occupiers,” even though they do not say “come in.” If a person has any degree of control over the state of the premises it is enough.
(c) At p. 601, Lord Pearson said:
“The foundation of occupiers’ liability is occupational control, i.e., control associated with and arising from presence in and use of or activity in the premises. ”
Ghag Enterprises was the owner of unit 43. Ghag Enterprises was occupying the driveway of unit 43 – it had supervision and control over it and it purported to lease it to the Caters. Ghag Enterprises is therefore an occupier within s. 1, and ss. 6 and 3 apply.
Section 6 of the Occupiers Liability Act reads:
6.(1) Where premises are occupied or used by virtue of a tenancy under which a landlord is responsible for the maintenance or repair or the premises, it is the duty of the landlord to show toward any person who, or whose property, may be on the premises the same care in respect of risks arising from failure on his part in carrying out his responsibility, as is required by this Act to be shown by an occupier of premises toward persons entering on or using them.”
The duty of care set out in 5.3 of that Act reads:
(f) (1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and his property, on the premises, and property on the premises of a person, whether or not that person himself enters on the premises, will be reasonably safe in using the premises.
The duty of care referred to in subsection (1) applies in relation to the condition of the premises; activities on the premises; or conduct of third parties on the premises.
9. Notwithstanding subsection (1), an occupier has no duty of care to a person in respect of risks willingly accepted by that person as his own risks.”
In Zavaglia v. MAQ Holdings Ltd., 50 B.C.L.R. 204, Lamperson J. in commenting on the standard of care owed by a landlord pursuant to s. 3(1) said at p. 216:
“The test is an objective test, namely, that of a reasonable man. The learned author, Mr. Di Castri, at p. 217 of his book outlined several factors that courts have considered in applying this test; they are:
Whether the plaintiff, in the light of his own knowledge, exercised reasonable care for his own safety;
Whether the occupier’s conduct accorded with an accepted standard or practice;
9. Whether the occupier’s system of inspection or supervision was commensurate with the risk, the length of time the danger was allowed to exist being highly relevant;
The steps necessary to remove the danger and the consequent burden on the occupier; and Whether or not the danger was foreseeable in accordance with the principle enunciated in Donoghue v. Stevenson.  A.C. 562 (H.L.)
The depression in the driveway was obvious to any inspection and had remained there for some months. The necessary patching of the pavement to cure the danger was minor. The danger to people using the driveway, which was also the walkway to the residence, was apparent and the possibility of injury to such people foreseeable.
I find the defendants did not take that care in all the circumstances of the case as was reasonable to see that a person using the premises would be reasonably safe in using the driveway.
Malia at the time of the accident was an eight-year-old with a hearing defect but an average student. It appeared she knew of the depression in the driveway and while she might have appreciated to some extent the danger of riding her bike through the depression, I find that she would not appreciate that danger so as to assume the risks within subsection (3) of 5.3.
On the preponderance of evidence I am satisfied that the accident was caused by the depression when Malia rode her bike into it and it pulled and toppled over.
I find both defendants liable to the plaintiffs.
The defendants submit that the infant plaintiff is contributorily liable. The law respecting the negligence and apportionment of liability of an infant is dealt with by Lambert J.A. in Ottosen v. Kasper, 37 C.C.L.T. 270 at page 275 and following. After referring to s. 1 of the Negligence Act, R.S.B.C. 1979, c. 298, Lambert J.A. said:
“The words used are the words of fault. The question that affects apportionment, therefore, is the weight of fault that should be attributed to each of the parties, not the weight of causation. In many cases they would be the same thing but, particularly in the case of a young child, the weight of fault may well be less than the weight that would be attributed if causation were the basis of the balancing. The point is supported by the reasons of Lord Denning in Gough v. Thorne,  3 All E.R. 398,  1 W.L.R. 1387 at 1390 [W.L.R., p. 399 All E.R.] where he says this at page 277:
‘I am afraid that I cannot agree with the judge. A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety: and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.
In this particular case I have no doubt that there was no blameworthiness to be attributed to the plaintiff at all.
The child, Malia, was eight years old at the time of the accident. She had been warned to keep away from the depression and not to ride double. In the circumstances she could not be expected to exercise the care of an adult or older child. However, she was familiar with riding her bike and knew the rules and problems. She ought to have taken some responsibility and precautions for her own safety.
I find Malia Cater 25% contributorily negligent.
I find the defendants 75% liable for the plaintiffs damages. Costs will follow the event.
The plaintiff has asked that costs be paid forthwith, however, the taxation of costs depends on quantum under the Rules and ought to be left until the completion of the case with the assessment of damages.
Pham v. Strata Plan NW 2003
Yen Thi Pham, Plaintiff, and
The Owners, Strata Plan NW 2003, Defendant
2007 BCSC 519
Vancouver Registry No. S060379
British Columbia Supreme Court
Vancouver, British Columbia
Heard: March 29 and 30, 2007.
Judgment: April 18, 2007.
Real property law — Condominiums — Bylaws — Condominium Corporation — Rights and obligations — Unit holders — Liability of — Action by Pham for payment of moneys held in trust by her solicitor dismissed and counterclaim by Strata for damages resulting from an illegal grow operation in Pham’s rental property allowed — Pham benefited from the work done by Strata, which cost them $106,730 to repair the damage for which she was responsible — It would be unconscionable to require Strata to bear the burden of those costs and thereby permit Pham to benefit from her conduct.
Action by Pham for payment of moneys held in trust by her solicitor and counterclaim by Strata for damages resulting from an illegal grow operation in Pham’s rental property — An illegal grow operation was raided by police in Pham’s rental property — Damage was caused to the apartment and surrounding area — Strata contacted Pham, as managers of the apartment complex, in order to recover costs associated with the clean-up — Pham ignored all communication by Strata in that regard — The work was completed and Pham was sent a bill for $106,730 — Strata put a lien on the property and Pham decided to sell and netted $61,500 which were held in trust by Pham’s solicitor pending the action — HELD: Action allowed — The statute and bylaws provided Strata with the authority it needed to carry out the repairs and charge Pham — On three occasions Pham was provided with letters informing her of what they intended to do and she made no objection and stood idly — Pham benefited from the work done by Strata, which cost them $106,730 to repair the damage for which she was responsible — It would be unconscionable to require Strata to bear the burden of those costs and thereby permit Pham to benefit from her conduct.
Statutes, Regulations and Rules Cited:
Strata Property Act, S.B.C. 1998, c. 43, s. 3, s. 31, s. 31(a), s. 31(b), s. 112(1), s. 112(2), s. 133, s. 133(1), s. 133(1) (a), s. 133(1)(b), s. 133(2), s. 135(1), s. 135(1)(a), s. 135(1)(b), s. 135(1)(c), s. 135(1)(d), s. 135(1)(e), s. 135(1) (f), s. 171, s. 171(1), s. 171(1)(a), s. 171(1)(b), s. 171(1)(c), s. 171(1)(d), s. 171(2), s. 171(3)
Counsel for Plaintiff: Andrew Davis.
Counsel for Defendant: John D. Shields.
1. MACZKO J.:– There are two actions before the court being tried pursuant to Rule 18A. One is by the plaintiff to have approximately $61,500.00, which is being held in trust by the plaintiff’s solicitor, paid out to her. The other action is by the defendant, by way of counterclaim, seeking judgment against the plaintiff in the amount of $106,730.39.
2. The plaintiff owned an apartment in a strata complex at 10732 Guildford Drive, Surrey, British Columbia. She claims that she rented out the apartment to two people who, without her knowledge, operated a marijuana grow operation in the apartment. The defendant alleges that the apartment was never rented and the grow operation was run by the plaintiff. For the purposes of this 18A, I am not required to resolve that disputed fact.
3. The grow operation caused significant damage to the plaintiff’s apartment, to a neighbour’s apartment and to common areas. On February 11, 2005, the police raided the apartment and the grow operation was closed down. On February 15, the strata corporation through its agent, the property manager, wrote to the plaintiff telling her about the damage and telling her that she will be obliged to pay the costs of repairs. The letter also advised the plaintiff that she had not paid her strata maintenance payments. At no time did she pay strata maintenance payments. She did not respond to the letter of February 15.
4. The defendant again, through its property manager, wrote to her on February 28, 2005 outlining in detail the illegal marijuana grow operation and setting out the damages to the neighbour’s unit and to the common property, the health hazard caused by the growing mould and asbestos, and the risk of electrical fire because of modifications that had been made to the electrical system. The letter told her that the work to fix the problems would begin shortly and that she would be charged for the cost. The letter also outlined her breaches of the strata corporation’s bylaws, which included:
causing a nuisance;
interference with other owners’ right to enjoyment of their property;
illegal activity in her unit;
using the unit contrary to the purpose for which it was supposed to be used; and
failing to advise the council that she would not be living in the unit as required by the bylaws.
5. The plaintiff did not respond to this letter. The defendant wrote to her again on April 26, 2005 notifying her that the work would be commencing that day and would take approximately 2-3 weeks to complete. The letter also informed the plaintiff that the cost of the work would be in excess of $70,000 and that there was a $50,000 deductible on the insurance policy because the damage was caused as a result of a grow-op in the apartment. She was again informed that she would be charged for the cost of repairs. The plaintiff did nothing, said nothing and gave no indication at any time that she objected to the procedure or that she would do the repairs herself.
6. The work was completed and the plaintiff was sent a bill for $106,730.39. The defendant put a lien on the property. The plaintiff decided to sell the apartment and netted $61,500.00 after paying out the mortgage. These monies have been held in trust by the plaintiff’s solicitor pending the outcome of this action.
7. The issue before me is whether the defendant had the legal authority to carry out the repairs and to charge the plaintiff for them. The plaintiff’s reply to the counterclaim is a bare denial which reads as follows:
117. The does [sic] not oppose the granting of the relief set out in the following paragraphs of the Defendant’s Notice of Motion dated January 5, 2007: None
117. The Plaintiff opposes the granting of the relief set out in the following paragraphs of the Defendant’s Notice of Motion dated January 5, 2007: All
117. The Plaintiff will rely on the following affidavits: To follow.
8. The plaintiff alleges that she rented out the apartment and was not responsible for the damage caused by the marijuana grow operation. However, the bylaws require that she obtain permission from the strata corporation before she is permitted to rent out the apartment. She did not obtain that permission. Section 3 of the Strata Property Act, S.B.C. 1998, c. 43 (the “Act”) provides:
117. 3 Except as otherwise provided in this Act, the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners
9. Section 133 of the Act provides:
117. 133(1) The strata corporation may do what is reasonably necessary to remedy a contravention of its bylaws or rules, including doing work on or to a strata lot, the common property or common assets; and
119. removing objects from the common property or common assets.The strata corporation may require that the reasonable costs of remedying the contravention be paid by the person who may be fined for the contravention under section 130.
10. In my view, the statute and the bylaws provide the corporation with the authority it needed to carry out the repairs and charge the plaintiff for them.
11. In his argument, counsel for the plaintiff raised a number of defences to the counterclaim which I will deal with one by one.
Counsel for the plaintiff argued that the plaintiff was never given written notice demanding payment
12. Section 112 of the Act provides:
117. 112(1) Before suing or beginning arbitration to collect money from an owner or tenant, the strata corporation must give the owner or tenant at least 2 weeks’ written notice demanding payment and indicating that action may be taken if payment is not made within that 2 week period.
Before the strata corporation registers a lien against an owner’s strata lot under section 116, the strata corporation must give the owner at least 2 weeks’ written notice demanding payment and indicating that a lien may be registered if payment is not made within that 2 week period.
13. Counsel for the plaintiff argued that the plaintiff was never given written notice demanding payment. This issue was never pleaded and there is no evidence to support the defence. The plaintiff was notified on February 15, February 28 and April 26 that the work was going to be done and that she would be charged for the cost. In her own affidavit, the plaintiff says that “the defendant purported to incurred [sic] expenses totalling $106,730.39 in respect of the above work. Attached hereto as Exhibit “G” are copies of the bill and the supporting material.” An invoice showing the details of the monies spent, totalling $106,730.39, is exhibited to the affidavit along with all the individual invoices supporting the details of the account. She clearly had received the invoice, but nowhere in her affidavit does she say that there was no written demand or when she received the invoice.
134. The plaintiff argued that the lien was not properly filed
14. If the lien was filed contrary to law, the problem is now moot because the corporation removed the lien in order to permit the property to be sold.
The plaintiff argued that before the strata corporation sues under s. 171 of the Act, the suit must be authorized by a resolution passed by three-quarters vote at an annual or special general meeting
15. Section 171 provides as follows:
117. 171(1) The strata corporation may sue as representative of all owners, except any who are being sued, about any matter affecting the strata corporation, including any of the following matters:
the interpretation or application of this Act, the regulations, the bylaws or the rules;
119. the common property or common assets;
the use or enjoyment of a strata lot;
(a) money owing, including money owing as a fine, under this Act, the regulations, the bylaws or the rules.
Before the strata corporation sues under this section, the suit must be authorized by a resolution passed by a 3/4 vote at an annual or special general meeting.
(b) For the purpose of the 3/4 vote referred to in subsection (2), a person being sued is not an eligible voter.
16. This defence was not pleaded and there is no evidence that any such resolution had been obtained. Counsel for the defendant says he first heard about this defence a few days before the trial when plaintiff’s counsel showed him his argument.
(i) The plaintiff argued that pursuant to s. 135, the strata corporation must not require a person to pay the cost of remedying a contravention of a bylaw or rule unless the strata corporation has received a complaint
17 Section 135 provides as follows:
135.(1) The strata corporation must not impose a fine against a person,
119. require a person to pay the costs of remedying a contravention, or
deny a person the use of a recreational facility
117. for a contravention of a bylaw or rule unless the strata corporation has
(a) received a complaint about the contravention,
(ii) given the owner or tenant the particulars of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant, and
(c) if the person is a tenant, given notice of the complaint to the person’s landlord and to the owner.
18. I find that the letters of February 15, February 28 and April 26 are notice of a complaint in writing. The evidence shows that there was, in fact, a complaint from an owner. The plaintiff had plenty of opportunity to answer the complaint and there is no evidence she requested a hearing.
The plaintiff argued that there is a responsibility on the strata corporation to maintain insurance and to pursue diligently any claim that could be made to protect the interests of the owners
19. The strata corporation, in fact, did have insurance in the amount of $15,255,000. The corporation made a claim. However, it was denied because the insurance company assessed the insurable loss at $27,642.00. Because the damage was caused by growing something in an apartment, the deductible was $50,000. There is no evidence that the defendant could have recovered anything by suing the insurance company. At the very least, that would require some expert opinion that there was a reasonable chance of success against the insurer before I could conclude that the council did not act properly in pursuit of the claim.
The plaintiff argued that, pursuant to s. 31, the council members must act honestly and in good faith.
20. Section 31 provides:
117. 31 In exercising the powers and performing the duties of the strata corporation, each council member must act honestly and in good faith with a view to the best interests of the strata corporation, and exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances.
21. This defence was not pleaded and there is no evidence that the council members did not act honestly and in good faith, or did not exercise reasonable care and diligence in the performance of their responsibilities.
(c) The plaintiff argued that the defendant did not give the plaintiff an opportunity to do the repairs herself
22. This defence to the counterclaim was not pleaded and neither the statute nor the bylaws require that the defendant give the plaintiff an opportunity to do the repairs. Even if that were a requirement, I find that the plaintiff acquiesced in what the defendant did. On three occasions she was provided with letters informing her of what they intended to do and that the costs would be visited upon her. She made no objection and stood idly by while the defendant did the repairs. I find that even if the defendant did fail to perform any of the procedural requirements, I do not think the plaintiff can benefit from them. I would rely on the principle of equitable fraud to deny the plaintiff’s claim.
23. The principle may be invoked where the court is of the opinion that it would be unconscionable for a person to avail themselves of the benefit obtained through their unfair dealings or unconscionable conduct. In First City Capital Ltd. v. British Columbia Building Corp. (1989), 43 B.L.R. 29 at 37 (B.C.S.C.) quoted with approval in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,  1 S.C.R. 678, 2002 SCC 19 at para. 39, McLachlin C.J.S.C., as she then was, said that equitable fraud “refers to transactions falling short of deceit but where the Court is of the opinion that it is unconscientious for a person to avail himself of the advantage obtained.”
24. Here, the plaintiff was responsible for the damages. The damage emanated from her apartment. Either she did it or she rented the apartment, contrary to the bylaws of the strata corporation, to tenants who caused the damage. She benefited from the work done by the defendant, which cost the defendant $106,730.39 to repair the damage for which she was responsible. It would be unconscionable to require the defendant to bear the burden of these costs and thereby permit the plaintiff to benefit from her conduct.
25. The plaintiff’s action is dismissed. The defendant will receive judgment for $106,730.39 plus court order interest.
26. Costs will follow the event.
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