Ontario Court of Appeal Affirms Landlord Liability in Third-Party Damages

Published on: February 2020 | What's Trending

Donkey next to a car mirror with motorbikes in the background

Is a landlord responsible when a tenant’s actions result in harm to third parties? That’s the question that the Ontario Court of Appeal recently addressed in Youssef v. Misselbrook, 2020 ONCA 83.

In that case, the defendant landlord owned a large rural farm property, which housed a number of animals. The property was leased by a tenant who resided there. The landlord didn’t maintain a regular presence at the property.

One day, the plaintiff was riding his motorcycle on a rural road near the property when he inadvertently struck a donkey and sustained serious and permanent injuries. The animal turned out to be one of five donkeys that had recently escaped from the farm property.

It was determined that the donkeys escaped by forcing the gate open, which was unlocked at the time. As the motion judge put it, “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”.

The plaintiff sued both the landlord and tenant for negligence, as they didn’t prevent the donkeys from escaping, thereby contributing to his injuries. The landlord brought a summary judgment motion to dismiss the claim against it on the basis that the tenant was the only one residing at the property and it was, therefore, his responsibility to maintain the fence, keep the gate locked and prevent livestock from escaping.

The motion judge (and the Court of Appeal) didn’t accept the landlord’s argument. It was held that, as a residential landlord of rural property, the landlord was obligated to have a policy or procedure in place to inspect or repair the fences and it failed to do so. The landlord was therefore deemed to be negligent and was responsible for the negligence of its tenant.

In coming to its decision, the court noted that the landlord admitted that it was responsible for the condition of the fence and, as part of this responsibility, the landlord inspected and repaired the fence during the tenancy. As a result, the court explained that it made no difference whether the tenancy is treated as a residential or a commercial tenancy, or whether the landlord was in possession of the property. In both cases, it was determined that the landlord’s duties to maintain the fence are the same.

On top of this, it was also held that the landlord was negligent for failing to carry out regular inspections and to notice that the gate immediately adjacent to a roadway was unlocked. Livestock on a roadway constitutes a potential hazard for motorists; that hazard was created by the unlocked gate.

The landlord was therefore deemed to have been negligent in its duty to protect the property from potential hazards. Accordingly, its motion to dismiss the plaintiff’s claim against it was dismissed and the ruling was upheld by the Court of Appeal.

The court’s determination in this case is rather straightforward. If you keep a herd of donkeys fenced-in beside a road, you should make sure to lock the gate. However, despite these facts, this decision can still serve as an interesting cautionary tale for both commercial and residential landlords.

It’s important to note that part of the reason that the landlord was found to be negligent in this case was because it acknowledged that it was responsible for maintaining the fence on the property. It was therefore held to be liable when the plaintiff was injured after the fence was breached.

However, it’s not clear whether the landlord would have been held liable if it didn’t make this admission. In other words, if the landlord didn’t acknowledge its responsibility to maintain the fence, maybe the tenant would have shouldered all the liability in this case.

In any event, this case shows that landlords (both commercial and residential) may be wise to keep a close eye on the order and maintenance of their own properties. If damages result from negligence, the blame (or at least part of it) may fall on them.

Author: Daniel Waldman, Lawyer