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RESIDENTIAL TENANCIES - Tenant’s obligations - Damages to premises

Monday, June 01, 2020 @ 9:24 AM  

Lexis Advance® Quicklaw®
Appeal by the defendants from a summary judgment granted in favour of the plaintiffs. The plaintiffs rented their home to the defendants. An explosion and fire at the home caused damage that eventually required demolition of the residence. Investigation of the source of the explosion and fire revealed evidence of a marijuana residue processing operation. The plaintiffs sued their insurer after it denied coverage based on an exclusion clause related to damage caused by production of illegal drugs. In a second claim, the plaintiffs sued the defendant for damages in negligence. Applications by the insurer and the plaintiffs for summary judgment were heard together. The claim against the insurer was summarily dismissed based on the exclusion clause. The claim against the defendants was allowed, with summary judgment awarded to the plaintiffs in the amount of $171,795 plus ancillary costs based on the defendants’ breach of their obligations as tenants. A trial was directed to quantify damages for lost rental income. The defendants appealed.

HELD: Appeal allowed in part. While an amendment to the pleadings was preferable, no reversible error arose from grounding liability based on the Residential Tenancies Act rather than common law negligence, as pleaded by the plaintiffs. No prejudice arose, as the defendants had notice of the plaintiffs’ intent to rely upon the Act at the hearing and made no objection. In determining liability, no error occurred in the application of the principles governing summary judgment. Even if reliance on the expert evidence regarding cause was problematic, there was no uncertainty regarding the origin of the fire. However, in quantifying damages for the loss of the house, there was no evidence of repair costs before the chambers judge to assess the defence position that it was not reasonable or appropriate to have demolished the house. In relying upon a builder’s hearsay assertion akin to an expert opinion that it would be cheaper to demolish than rebuild to award damages, the chambers judge committed a reversible error. The issue of the damages awarded for the loss of the house was a genuine issue requiring a trial. That aspect of the judgment was vacated with a trial ordered accordingly.

Carteri v. Hoffart, [2020] S.J. No. 151, Saskatchewan Court of Appeal, R.G. Richards C.J.S., L.M. Schwann and J.D. Kalmakoff JJ.A., April 24, 2020. Digest No. TLD-June12020001