



COURT OF APPEAL FOR ONTARIO

CITATION: Youssef v. Misselbrook, 2020 ONCA
    83

DATE: 20200204

DOCKET: C66176

Lauwers, van Rensburg and
    Roberts JJ.A.

BETWEEN

Amir Youssef a disabled person
    by his litigation guardian the Office of the Public Guardian and Trustee

Plaintiff
    (Respondent)

and

Margaret
    Misselbrook,
693316 Ontario Limited o/a

Toronto
    Redi-Mix Limited
, Regional Municipality of Durham and

Jevco
    Insurance Company

Defendants (
App
ella
nt
)

Alan L. Rachlin, for the appellant

C. Kirk Boggs and Darcy Romaine, for the
    respondent

Heard: January 20, 2020

On appeal from the order of Justice Gregory
    M. Mulligan of the Superior Court of Justice, dated October 26, 2018, with
    reasons reported at 2018 ONSC 6409.

REASONS FOR
    DECISION

A.

OVERVIEW

[1]

The appellant is the only remaining defendant in
    this action. It appeals from the motion judges dismissal of its motion for
    summary judgment and the granting of judgment in favour of the respondent. The
    motion judge reserved the issue of damages for trial.

[2]

The respondent sustained serious injuries when he
    lost control of his motorcycle after colliding with one of five donkeys that
    had escaped from the appellants tenanted rural property.

[3]

The motion judge found that the donkeys had
    escaped from the appellants property. Specifically, he determined that 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.

[4]

The motion judge concluded that the appellant was
    negligent as a residential landlord of rural property because it had no policy
    or procedure in place to inspect or repair the fences although it was its
    obligation to do so. Implicit in the motion judges reasons was the finding that
    the appellant was negligent in permitting an unlocked gate through which animals
    could and did escape on to the adjacent roadway. As a result, the appellant was
    responsible for the negligence of its tenant, Mark Burnfield, who had allowed his
    animals to escape and create a public nuisance on the roadway. Mr. Burnfield
    had been noted in default and did not participate in the motion or the appeal.

B.

ANALYSIS

[5]

The appellant takes no issue with the motion judges
    findings of fact but submits that the motion judge made the following reversible
    errors:

i.

He erred in applying the
Residential
    Tenancies Act
, 2006, S.O. 2006, c. 17 to the tenancy agreement between the
    appellant and its tenant. Absent the provisions in the
Residential
    Tenancies Act
, he erred in finding that the appellant owed a duty of care for
    nonfeasance.

ii.

He erred in his causation analysis to the extent
    that he equated a failure on the part of the appellant to ensure the gate was
    locked with a failure to keep the fence in good structural repair and free from
    hazard.

iii.

He erred in setting the standard of care too
    high for a landlord not in possession.

iv.

He erred in granting judgment in favour of the respondent
    without determining the question of contributory negligence.

[6]

Dealing first with the question of the appellants
    liability as a landlord, we are not persuaded that the motion judge made any
    reversible error. The particular facts of this case drove the motion judges
    causation analysis, which is reasonable and subject to appellate deference.

[7]

The appellant admitted that it was responsible
    for the condition of the fence. The evidence establishes that in furtherance of
    this responsibility, the appellant inspected and repaired the fence over the
    course of the tenancy. This is not an admission that the appellant sought to
    withdraw. As a result, it makes no difference to the outcome of the motion or
    this appeal whether the tenancy is treated as a residential or a commercial
    tenancy or whether the appellant was a landlord in or out of possession of the
    tenanted property. In either case, based on its admission, the appellants duties
    to maintain the structural integrity of the fence are the same.

[8]

Further, the motion judge made no error in
    finding that it was negligent for the appellant to have failed to carry out regular
    inspections and notice that the gate immediately adjacent to a roadway was unlocked.
    The unlocked gate rendered the fence deficient for its purpose of keeping
    livestock enclosed within it. There is no issue that livestock on a roadway constitutes
    a potential hazard to motorists. The unlocked gate created this hazard in that
    it served as a breach of the fence through which livestock could and did escape
    on to the roadway. Therefore, in the circumstances of this case, it was open to
    the motion judge to conclude that the appellant had failed in its undertaken duty
    to secure the structural integrity of the fence.

[9]

We agree that the motion judge does not appear to
    have dealt with the question of contributory negligence. His reasons do not
    address this issue. However, to be fair to the motion judge, this was not the focus
    of the parties submissions before him on the appellants summary judgment motion.
    In consequence, the issue of contributory negligence, along with damages, is
    remitted for determination at trial.

C.

DISPOSITION

[10]

For these reasons, we allow the appeal in part and
    remit the issue of contributory negligence to trial along with the issue of
    damages. We otherwise dismiss the appeal.

[11]

The results on this appeal are mixed. Accordingly,
    the costs of this appeal are to the successful party in the cause.

[12]

The motion judges order provides that the costs
    of the motion shall be agreed on or determined by the motion judge. We were not
    advised how or if costs were agreed on or determined. We therefore make no
    order respecting the costs of the motion.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


