Case commented on: Holmes v. Edmunds, 2017 ABCA 28 (CanLII)
Related area– Residential Tenancies Act, SA 2004, C R-17.1; Occupiers Liability Act, RSA 2000, c O-4 ; Common law;
Background Facts: This matter arises out of a dog bite incident on December 3, 2011, at Didsbury, Alberta. The landlords rented their house to the tenants under a Residential Tenancy Agreement [the Agreement], which included a Pet Agreement and Pet Rules. Under the Agreement, the tenants obtained the landlord’s approval for a dog (Marley). Sadly, Marley passed away soon, and after a gap of one year, the tenants brought a new dog (Chopper) without the consent or knowledge of the landlords. Chopper attacked and injured a five-year-old girl, who visited the premises with her mother on December 3, 2011.
This is a classic example of what are a landlord’s liability if the tenant’s dog bites.
The Mother and child [the Visitors] brought an action against the tenants, and also against the landlords. In response to the Visitors’ claim, the landlords brought an application to summarily dismiss the claim against them.
The Lower Court:
- Arguments on behalf of the Visitors: The Visitors argued that the landlord is an ‘occupier’ under the Occupier’s Liability Act [the OL Act] and under the terms of the Agreement and pet rules or alternatively, he owes a common law duty of care towards the Visitors.
Under the OL Act, an occupier is a person who has responsibility for and control over, the conditions of the premises, the activities conducted on those premises and the persons allowed to enter those premises. The Visitors argued that the landlord exerts far-reaching control over the premises, its conditions, activities conducted on the premises and the persons allowed to enter the premises.
For example, ban on smoking, control over modifications to the premises, kind and number of pets permitted on the premises, and who could live in the premises. Also, Pet Rules deal with kind of collar, vaccinations, licensing, etc. As a result, the landlords exercised a degree of control over the premises 24 hours a day, 7 days a week, and 365 days a year.
The Visitors alternatively argued that the landlord was negligent for breach of their duty under common law to ensure that the premises were safe from foreseeable dangers. They raised a novel argument that the landlords failed by ensuring that the tenants comply strictly with the Pet Rules. They further argued that while the standard of care is that of a reasonable person, however, they argued that the landlord had an elevated standard of care than a reasonable person.
- Landlord’s Arguments: On the other hand, the landlord argued that the terms of the Agreement are codified under the Residential Tenancies Act [the RTA], and the landlord does not control the premises as claimed by the Visitors. The RTA provides for tenant’s privacy, quiet enjoyment, and exclusive use of the premises. The Act also ensures that the landlord can only enter the premises without consent only in an emergency, or when the premises are abandoned or with 24 hours’ notice in writing.
- The Chamber Justice’s Decision: The Honourable Madame Justice Kenny referred to a number of cases that held that a landlord is not an ‘occupier’ absent “minute to minute or hour to hour control” of the premises. She also acknowledged a tenant’s entitlement of privacy and peaceful enjoyment and exclusive use of the premises. She held that if the tenant’s consent to follow the rules imposed during the tenancy, a breach of which attract repercussions, that does not, in any way, put the landlord in control of the premises making them fall within the definition of the “occupier” under the OL Act.
The Chamber Justice rejected the Visitors’ common law analysis and landlord liability and held that historically there has been no such elevated duty imposed on the landlords. While it may create a higher standard of care for the tenants, it did not for the landlord in this case, who acted as reasonable landlords and took all reasonable steps to meet their duty of care.
The Court of Appeal:
The Visitors, feeling dissatisfied by the decision of the Chamber Justice, appealed to the Court of Appeal. The Panel agreed with the above reasoning and analysis of the Chambers Justice and dismissed the Appeal.
Take Aways:
- Both Landlord and tenant must review the lease agreement with a lawyer before signing and confirm the scope of your rights and obligations. This won’t make the landlord liability an issue;
- Check for a notice clause in the Agreement for change in any of the terms and circumstances of the tenancy;
- Tenants should take precautions with pets permitted on the residence and comply with the Pet Rules.
