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OCCUPIERS' LIABILITY - Particular situations - Injury to children - Liability for injury by animals - Landlord and tenant

Monday, February 13, 2017 @ 11:39 AM  


Appeal by the plaintiff, Holmes, from summary judgment dismissing her action as against particular named defendants, the Edmunds. The plaintiff's daughter, age five, was bit by a dog, Chopper, while visiting the owners' residence. Chopper's owners were tenants at a premises owned by the defendants. The tenants' lease required the defendants' permission for any new or additional pets. The defendants had permitted the tenants to have a dog. However, that dog passed away in 2010 and was replaced by Chopper. No permission was obtained in respect of Chopper. The defendants' applied for summary judgment dismissing the claim against them. They submitted there was no basis for finding liability in negligence or under the Occupiers' Liability Act (OLA). The chambers judge granted the defendants' application. The plaintiff appealed.

HELD: Appeal dismissed. The chambers judge identified and applied the correct legal test on the summary dismissal application. The chambers judge did not err in concluding the defendants were not occupiers within the meaning of the OLA by virtue of control over the premises through the lease and related pet agreements. The decision was supported by jurisprudence establishing a landlord was not an occupier in the absence of minute to minute control of a premises. A breach of tenancy rules did not put a landlord in control of a premises for the purpose of the OLA. In so concluding, the chambers judge did not make any legal or evidentiary error. In addition, the chambers judge did not err in finding that the defendants were not negligent at common law. There was no basis for finding sufficient proximity supporting a duty of care owed by the defendants to a visitor to their premises. No liability could be imputed through an alleged failure to enforce the rules regarding pets on premises.

Holmes (Litigation representative of) v. Edmunds, [2017] A.J. No. 45, Alberta Court of Appeal, P.A. Rowbotham, B.L. Veldhuis JJ.A. and J. Strekaf J. (ad hoc), January 23, 2017. Digest No. 3638-010