1051385 Alberta Ltd. v. Fullcorp, 2012 ABQB 162

Court of Queen ’ s Bench of Alberta Citation: 1051385 Alberta Ltd. v. Meunier, 2012 ABQB 162 Date: 20120308 Docket: 0703 02542 Registry: Edmonton Between: 1051385 Alberta Ltd. and Fullcorp Property Management Ltd. Plaintiffs - and - Lee Ambrose Meunier Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J.

Manderscheid _______________________________________________________ Introduction [ 1 ] This is an action for damages allegedly suffered by the Plaintiffs when a pipe burst in an apartment that the Plaintiffs rented to the Defendant. The ruptured pipe caused flooding and damage to the apartment and other parts of the apartment complex. The

Plaintiffs argue that the Defendant was negligent and breached the Lease Agreement when he turned the thermostat off, and that this caused the pipe to freeze and burst. The Defendant denies setting the thermostat to off, and denies liability for damage caused by the ruptured pipe. Facts [ 2 ] The Plaintiff, 1051385 Alberta Ltd., is the registered owner of an apartment complex known as Forest Green Villas, located at [...] Brown Street, Stony Plain, Alberta (the “Property”). The second Plaintiff, Fullcorp Property Management Ltd. (“Fullcorp”), manages the Property. [ 3 ] On December 1, 2003, the Defendant, Mr.

Lee Meunier, and another individual, Dayton Hennig, entered into a Tenancy Lease Agreement with Fullcorp (the “Lease Agreement”). The Lease Agreement set out that the Defendant and Mr. Hennig would lease Suite 205A of the Property (“Suite 205”) from Fullcorp on a month to month basis. [ 4 ] The relevant clauses of the Lease Agreement are set out below: 2(

e) The Tenant will not do or permit significant damage to the apartment, the building, or the equipment. 14 MAINTENANCE COSTS : ... The Tenants shall be responsible for damage caused by windows and/or doors being left open in inclement weather, including cost of repairing frozen pipes as well as general repair and/or replacement for the damages caused by such broken pipes as well as cleaning costs. 20 NEW RULES : The Landlord may from time to time make such other and further reasonable rules for the care and cleanliness of the building and grounds and for the comfort and convenience of the tenants.

Visitors and guests shall obey such rules. [ 5 ] The Defendant’s roommate, Mr. Hennig, moved out of Suite 205 before the incident occurred. Mr. Hennig’s name was not removed from the Lease Agreement, nor did the Defendant and Fullcorp enter into a new Lease Agreement. At the time of the incident, the Defendant was the sole resident of Suite 205. [ 6 ] At all relevant times, Ms. Rhonda Kelly, and her husband Mr. Dennis Kelly, were employed by the Plaintiff Fullcorp as Resident Managers of the Property. Ms. Kelly was responsible for on-site duties such as managing tenants, cleaning, and collecting rent. Mr.

Kelly was responsible for maintenance. The Kellys lived at the Property with their son, Jonathan, who occasionally helped out with cleaning. [ 7 ] As a part of the duties of the Resident Manager, each year Ms. Kelly distributed the following notice to tenants of the Property: DON’T LET FROZEN PIPES HAPPEN TO YOU THIS WINTER!!!! When outside temperature is below freezing, DO NOT OPEN WINDOWS, it takes less than five minutes for an open window or patio door to freeze pipes. The pipes burst upon thawing and spew hot water causing costly damage.

Do not turn the thermostat below 18 (65 f.) degrees when temperature outside is below freezing.

Should a heating pipe break; attempt to turn off the shut off valves at either end of your suite, (eg. Living room or bedroom) only if you can do so in safety, and immediately call Your Resident Manager. If windows freeze up, use a blow dryer on low setting and gently loosen the ice. If your unit has a balcony it should be kept free of ice and snow buildup to minimize freezing around the base of balcony windows, and possible water leakage during thaw periods. Avoid covering the radiator with furniture or long drapes.

There should be at least a 9 to 12 inch clearance between the heat register and furniture or other obsticles [ sic ]. YOU WILL BE HELD RESPONSIBLE FOR THE COST TO REPAIR ANY DAMAGE DUE TO FROZEN LINES, SHOULD YOU FAIL TO FOLLOW THE ABOVE INSTRUCTIONS!!!! [ 8 ] In the days leading up to the incident which is the subject of this litigation and which took place on March 6, 2006, the outside temperature in Stony Plain was below freezing. At Questioning, the Defendant agreed that the temperature was below freezing on the days leading up to the incident.

This is supported by the Environment Canada Data Report for March 2006, which was attached as an exhibit to Ms. Kelly’s January 10, 2008 affidavit. The Environment Canada Data Report indicates that on March 6, 2006, the minimum temperature was -15 degrees Celsius, and the maximum temperature was +0.5 degrees Celsius. [ 9 ] In the time leading up to the incident, the Defendant worked in northern Alberta, and would often be absent from Suite 205 for extended periods of time.

The Defendant left Suite 205 on or before February 25, 2006 and did not return until after the incident. [ 10 ] On March 6, 2006, the Resident Managers’ son Jonathan was vacuuming when he found wet carpet on the 2nd floor hallway of the Property. Jonathan immediately told his mother, Ms. Kelly, about the situation. [ 11 ] Ms. Kelly observed the wet carpet, then went back to her own suite to contact the Property Manager, Mr. John Saunders. Mr. Saunders gave Ms. Kelly permission to enter Suite 205 using a master key, which she did. [ 12 ] Upon entering Suite 205, Ms.

Kelly and Jonathan both observed significant amounts of steam, which caused reduced visibility. Both individuals described the temperature in Suite 205 as hot. Ms. Kelly suffered a burn on her leg as a result of the incident. [ 13 ] Ms. Kelly and Jonathan looked around for the source of the problem, and found hot water running from a ruptured radiator pipe. The ruptured pipe was located in the smaller of two bedrooms, below a closed window. [ 14 ] Ms. Kelly tried to locate the hot water shut-off valve, but could not.

She then left Suite 205 and went to the boiler room, where she was able to shut off the water to the entire building. [ 15 ] Suite 205 was left open while Ms. Kelly attended the boiler room. Jonathan stayed behind to clean up. Jonathan left Suite 205 to get a mop, then returned to begin mopping in the entryway. [ 16 ] Both Ms. Kelly and Jonathan testified about their observations of the thermostat in Suite 205 after Ms. Kelly went to the boiler room. Both individuals observed the thermostat set all the way to the left, and described this as the “off” position. [ 17 ] Shortly after Ms.

Kelly returned from the boiler room, Mr. Saunders, Mr. Kelly, and the plumber arrived at the Property. Ms.

Kelly pointed out the thermostat to these three individuals. [ 18 ] The plumber entered Suite 205 and fixed the ruptured pipe. By this point, however, the ruptured pipe and flood water had caused significant flooding to Suite 205 and other parts of the Property. [ 19 ] The Defendant vacated Suite 205 shortly after the incident, as it was not fit for occupancy. [ 20 ] The Plaintiffs subsequently commenced this action, claiming that the Defendant breached the Lease Agreement and negligently caused damage to the Property.

The Plaintiffs’ claim for the cost of repairing the Property as well as loss of rental income, totalled $49,849.02.

This sum includes: (a) $46,759.02 for damage to the Property requiring repairs, broken down as follows: i) $2,011.60 for flood containment and extraction of water; ii) $257.81 for plumbing repair; iii) $8,391.08 for replacement of carpet, flooring and associated labour; iv) $36,098.53 for emergency repair and reconstruction; and (b) $3,090.00 for loss of rental income for Suite 205 and Suite 105. [ 21 ] At trial, the Plaintiffs acknowledged that the Defendant paid a $600 damage deposit and that this was not returned to the Defendant.

The Plaintiffs agreed that damages should be reduced by $600 to account for the Plaintiffs having retained the damage deposit. [ 22 ] The Defendant has not paid the cost of repairs or loss of rental income, and denies liability. Issues [ 23 ] From these facts, the following issues arise: 1. Preliminary Issue: is the Defendant covered by the Plaintiffs’ policy of insurance? 2. Finding of fact: did the Defendant turn the thermostat to the off position? 3. Liability: A. Did the Defendant breach the terms of the Lease Agreement?

B. Was the Defendant negligent? 4. Causation: did the Defendant’s breach of contract or negligence cause the pipe to burst? Analysis 1. Preliminary Issue: is the Defendant covered by the Plaintiffs’ policy of insurance? [ 24 ] This is a subrogated claim by the Plaintiffs’ insurer. The Plaintiff corporations have presumably filed a claim under an insurance policy, and their insurer is now seeking to recover damages from the Defendant. [ 25 ] In some situations, a tenant may be covered under a landlord’s insurance policy.

Where a lease includes a landlord’s covenant to insure, the tenant is immune to any subrogation rights advanced by the landlord’s insurer arising out of a loss to the landlord’s leased property: Smith v T Eaton Company , [1978] 2 SCR 745 , as cited in McDonnell v Richter , 2010 ABQB 440 at para 24 . [ 26 ] If the Defendant, as a tenant, is entitled to coverage under the Plaintiffs’ (landlords’) insurance policy, there can be no claim for damages against the Defendant. [ 27 ] However, in this case, the Lease Agreement does not include a covenant to insure.

A landlord’s covenant to insure is not a mandatory part of a lease agreement under the Alberta Residential Tenancies Act , SA 2004, c R-17.1 [ Residential Tenancies Act ]. Therefore, the principle in Smith v T Eaton Company does not apply. The Defendant, as a tenant, is not immune to the subrogation rights being advanced by the Plaintiffs’ insurer. 2. Finding of fact: did the Defendant turn the thermostat to the off position? [ 28 ] The Plaintiffs argue that this case turns on the factual question of whether the Defendant turned the thermostat to the off position.

I agree that this issue is determinative of the outcome in this action. [ 29 ] Three individuals gave evidence about the thermostat: Ms. Kelly, Jonathan, and the Defendant. [ 30 ] The Plaintiffs point to the evidence of Ms. Kelly and Jonathan to establish that on the day of the incident, the thermostat in Suite 205 was set to the farthest left position, which they described as the off position. The Plaintiffs also led evidence to prove that no one entered the Defendant’s suite between the time that the Defendant left for work and the incident.

The Plaintiffs argue that this leads to the conclusion that the Defendant must have turned the thermostat to the far left position before he left Suite 205 for work, on or before February 25, 2006. [ 31 ] The Defendant denies that he turned the thermostat to the far left, or off position. Evidence of Ms. Kelly, Resident Manager [ 32 ] Ms. Kelly provided affidavit evidence and testified at trial.

[ 33 ] Ms. Kelly described the heating system at the Property. Ms. Kelly testified that the heat in each suite is regulated by a thermostat, which must be controlled manually. Ms. Kelly testified that she received no complaints about heat or air conditioning while she was Resident Manager. [ 34 ] Ms. Kelly testified that replacing thermostats at the Property was the responsibility of both her husband, Mr. Kelly, and the plumber. Ms. Kelly testified that to her knowledge, it was uncommon to have a broken thermostat, but her husband Mr. Kelly did replace one thermostat in the time he was Resident Manager. Ms.

Kelly also testified that the plumber inspected thermostats at the Property from time to time, but not on a regular basis. If the plumber was required to attend the Property before a tenant moved in, the plumber would check the thermostat at that time. [ 35 ] Ms. Kelly testified that on the day of the incident, she knew the Defendant was working out of town, because the Defendant had asked Ms. Kelly to enter his suite to look after his fish tank. Although Ms.

Kelly agreed, she testified that she did not enter Suite 205 to check on the Defendant’s fish or for any other purpose during the time the Defendant was away. Ms. Kelly testified that to her knowledge, her husband Mr. Kelly also did not enter the Defendant’s suite in the time leading up to the incident. [ 36 ] Ms. Kelly testified that she first observed the thermostat after returning to Suite 205 from the boiler room. Ms. Kelly testified that when she returned, Jonathan was standing in the hallway. Ms.

Kelly and Jonathan re-entered Suite 205, and as she was coming out, she noticed that the thermostat was “turned off”. Ms. Kelly testified that she showed this to Jonathan. [ 37 ] Ms. Kelly testified there was only one thermostat associated with Suite 205, which was located inside Suite 205, by the door in the entryway. Ms. Kelly testified that there were numbers on the thermostat. [ 38 ] Ms. Kelly testified that she did not know whether the thermostat was working properly at the time of the incident, nor did she know whether the thermostat was inspected after the incident. Ms.

Kelly testified that the Defendant did not advise her of any problems with the thermostat. Ms. Kelly also testified that to her recollection, the next tenant who occupied Suite 205 after the Defendant did not report any problems with the thermostat. [ 39 ] Ms. Kelly testified that she could not recall any other pipes bursting at the Property. Evidence of Jonathan, son of the Resident Managers [ 40 ] Jonathan testified at trial.

Jonathan was 23 years old at the time of the trial, which would make him approximately 17 years old at the time of the incident. [ 41 ] On the day of the incident, Jonathan was vacuuming the 2 nd floor hallway at the Property. He observed that the carpet outside one of the suites was wet. At first Jonathan identified the suite from which water was escaping as suite 203. Jonathan later identified it as Suite 205. Jonathan also described it as the Defendant’s suite, and by its location down the hall and across from his own suite.

I am satisfied that Jonathan identified Suite 205, the Defendant’s suite, as the suite from which water was escaping on the day of the incident. [ 42 ] Jonathan testified that he first observed the thermostat while his mother, Ms. Kelly was in the boiler room. Jonathan left Suite 205 to get a mop and then returned to begin mopping the entryway. While he was mopping, Jonathan looked around to see where more water was, and at that time he observed that the thermostat was “pretty low”.

Jonathan also described the thermostat as all the way to the left (Trial Transcript, pg 30, lines 19-28). [ 43 ] Jonathan testified that he then exited Suite 205 and returned to his own suite. He found his mother, Ms. Kelly, on the phone with Mr. Saunders. Jonathan testified that he then showed the thermostat to his mother.

Evidence of the Defendant [ 44 ] The Defendant testified at trial. Certain parts of the Defendant’s answers from Questioning were also led in evidence at trial, by way of read-ins. [ 45 ] During Questioning and at trial, the Defendant indicated that he was aware Suite 205 was heated through hot water radiators. The Defendant also indicated he was familiar with how hot water radiator heating works. The Defendant indicated that to his understanding, hot water runs through the pipes, radiating heat into a room.

If the temperature or thermostat is turned off, no hot water runs through the pipes and the inside of the pipes will get cold. The Defendant also knew that if the heat in Suite 205 was turned off, the pipes could freeze and burst. [ 46 ] The Defendant indicated that his mother had a key to Suite 205, but to his knowledge she did not attend Suite 205 in the days leading up to and including March 6, 2006, the date of the incident. [ 47 ] The Defendant testified that at the time of the incident, he had a 33 gallon fish tank with several expensive fish in Suite 205. The fish tank did not have a heater.

The Defendant testified that he had an automatic fish feeder, but could not recall whether it was working at the time of the incident. The Defendant testified that before leaving for work on or before February 25, 2006, he asked Ms. Kelly to check on his fish while he was away. [ 48 ] The Defendant testified that Ms. Kelly had entered Suite 205 while the Defendant was away on prior occasions. The Defendant recalled one occasion in particular, where the Defendant left rent money in Suite 205 and Ms. Kelly went in to get it. [ 49 ] At trial, the Defendant was adamant that he did not turn off the thermostat.

The Defendant testified that this is the “god-honest truth” (Trial Transcript, page 37, line 14). The Defendant testified that he does not like living in cold temperatures, and does not like returning to a cold dwelling when he returns from working in the cold. The Defendant also testified that he had no reason to turn down the heat, because he did not pay for heat.

In cross-examination, the Defendant consistently indicated that at no point during his tenancy did he turn the thermostat’s slide mechanism all the way to the left. [ 50 ] The Defendant testified that the thermostat was controlled by a slide mechanism, and to his knowledge, did not have an “off setting” as there were no words indicating that either position was “off”.

Conclusion: did the Defendant turn the thermostat to the off position? [ 51 ] In FH v McDougall , 2008 SCC 53 at para 49 , the Supreme Court of Canada confirmed the standard of proof in the civil actions: ... in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [ 52 ] There is no direct evidence that the Defendant turned the thermostat to the far left or “off” position.

Rather, the Plaintiffs argue that the evidence establishes two facts: the thermostat was in the far left position after Ms. Kelly went to the boiler room, and no one entered Suite 205 between the time the Defendant left for work and the day of the incident. The Plaintiffs argue that I must draw the inference that the Defendant turned the thermostat to the far left position, on or before the day he left for work. [ 53 ] I accept that the thermostat was set to the far left position on the date of the incident.

However, on the evidence before me, I am not satisfied that the Defendant turned the thermostat to the far left position before leaving for work. There are a variety of ways the thermostat could have got to the far left position on the date of the incident, apart from the Defendant’s conduct.

[ 54 ] The Defendant suggested that someone may have turned the thermostat to the far left position when the ruptured pipe was first discovered, in a flustered attempt to get rid of the heat and steam in the suite. Ms. Kelly denied this possibility. Although I found Ms. Kelly to be credible witnesses in the sense that her testimony was honest and forthright, there is inconsistency between Ms. Kelly’s and Jonathan’s recollection of the events surrounding the discovery of the thermostat. For example, Ms. Kelly testified that when she returned from the boiler room, she found Jonathan in the hallway.

Jonathan, however, testified that after his mother went to the boiler room, he mopped in Suite 205 and then returned to his own suite, where he found his mother on the phone with Mr. Saunders. Furthermore, Ms. Kelly testified that she first noticed the thermostat when she went back to Suite 205, and she pointed out the thermostat to Jonathan. Jonathan, however, testified that he first noticed the thermostat when he was mopping in Suite 205, and that he pointed out the thermostat to his mother. [ 55 ] The inconsistency between Ms.

Kelly’s and Jonathan’s recollection of the incident suggest that the events may not be clear in these witnesses’ minds. Ms. Kelly and Jonathan were under considerable stress created by the immediate problem of hot flood water and steam. The events occurred very quickly. For these reasons, I give less weight to the evidence of Jonathan and Ms. Kelly about the events surrounding the discovery of the thermostat. Furthermore, Suite 205 was left open for a short period of time while Ms. Kelly attended the boiler room and Jonathan fetched a mop.

These factors undermine the conclusion that it could only have been the Defendant who turned the thermostat to the far left position. [ 56 ] The Defendant’s evidence at trial directly contradicts the conclusion that he turned the thermostat to the far left position. The Plaintiffs argue that the Defendant has an incentive to lie, and therefore I should give less weight to his evidence. I reject this argument. I found the Defendant to be a very credible witness. The Defendant’s evidence was consistent and adamant, in both cross-examination and questioning by the Court.

Furthermore, the Defendant had no incentive to turn the thermostat to the far left position, as his employment required that he work outdoors in sometimes cold conditions and he did not pay for heat to his suite. I therefore give significant weight to the Defendant’s evidence that he did not turn the thermostat to the far left before leaving for work. [ 57 ] I need not make a finding about exactly how the thermostat got to the far left position. The Plaintiffs need not disprove every possible way the thermostat could have been set to the far left position.

However, on the evidence before me, I am left with a great deal of doubt that it was a result of the Defendant’s conduct. [ 58 ] On a balance of probabilities, I am not satisfied that the Defendant turned the thermostat to the far left position before he left for work, on or before February 26, 2006. 3. Liability in contract: did the Defendant breach the terms of the Lease Agreement? Clauses 2(

e) and 14: Do or permit significant damage [ 59 ] The Plaintiffs allege that the Defendant breached the Lease Agreement in 2 ways. The first breach falls under clauses 2(

e) and 14 of the Lease Agreement: 2(

e) The Tenant will not do or permit significant damage to the apartment, the building, or the equipment. 14 MAINTENANCE COSTS : ... The Tenants shall be responsible for damage caused by windows and/or doors being left open in inclement weather, including cost of repairing frozen pipes as well as general repair and/or replacement for the damages caused by such broken pipes as well as cleaning costs. [ 60 ] The Residential Tenancies Act , s 21(

e) also sets out that the following covenant of the tenant forms a part of every residential tenancy agreement: ... the tenant will not do or permit significant damage to the premises, the common areas or the property of which they form a part.

... the tenant will not do or permit significant damage to the premises, the common areas or the property of which they form a part. [ 61 ] Clause 14 could arguably be interpreted in two different ways. One possible

interpretation is that Clause 14 only applies if the damage in question is caused by a window or door being left open in inclement weather. Another

interpretation is that under Clause 14, the tenant is responsible for all costs of repairing frozen pipes, regardless of whether it is caused by windows and/or doors being left open. [ 62 ] I adopt the first

interpretation, and find that Clause 14 only applies if the damage is caused by a window or door being left open in inclement weather. A plain reading of Clause 14 does not suggest the tenant will always be responsible for the cost of repairing frozen pipes. The tenant is only liable for the kinds of damages identified if the cause of the damage is a window or door being left open. [ 63 ] At best, this clause is ambiguous, or reasonably capable of more than one

interpretation. Where a contractual provision is ambiguous, the provision will be interpreted narrowly against the party who drafted the contract: Ironside v Smith , 1998 ABCA 366 at paras 63-69 . The Lease Agreement was provided by the plaintiff, Fullcorp, and the terms of the lease were dictated by the plaintiff, Fullcorp. This supports the

interpretation of Clause 14 such that it only applies where damages are caused by a window or door being left open in inclement weather. [ 64 ] Ms. Kelly testified that the window was not open when she discovered the ruptured pipe in Suite 205. There is no evidence to suggest that the damage was caused by a window or door being left open. I conclude that Clause 14 does not apply, because the damage was not caused by a window or door being left open in inclement weather. [ 65 ] It is also a term of the Lease Agreement that the Defendant must not “do or permit significant damage” to the Property, under clause 2(

e) of the Lease Agreement and s 21(

e) of the Residential Tenancies Act . [ 66 ] I interpret the phrase “do or permit significant damage” to mean that the Defendant will be in breach of this term of the Lease Agreement if he wilfully or negligently causes significant damage to the Property, either by himself or by permitting others to wilfully or negligently cause damage to the Property. [ 67 ] The Plaintiffs do not suggest that the Defendant willfully caused damage to the property.

As set out in more detail below, on the evidence before me, it is not proven that the Defendant was negligent, nor is it proven that the Defendant’s conduct caused the pipe to burst. Therefore, I conclude that the Defendant did not do or permit significant damage to the Property. The Defendant did not breach clause 2(

e) of the Lease Agreement, nor did the Defendant breach s 21(

e) of the Residential Tenancies Act . Clause 20: Breach of new rules [ 68 ] The Plaintiffs allege that the Defendant breached clause 20 of the Lease Agreement: 20 NEW RULES : The Landlord may from time to time make such other and further reasonable rules for the care and cleanliness of the building and grounds and for the comfort and convenience of the tenants.

Visitors and guests shall obey such rules. [ 69 ] The Plaintiffs argue that the plaintiff, Fullcorp, established a new rule under the Lease Agreement when it distributed a notice prohibiting tenants from setting thermostats below 18 degrees Celsius (see Paragraph 7). The Plaintiffs argue that the Defendant breached this term of the Lease Agreement on or before February 26, 2006, when he turned the thermostat to the far left position before leaving for work. [ 70 ] The Defendant argues that he did not receive notice of this rule.

Furthermore, the Defendant argues that he did not set the thermostat below 18 degrees Celsius.

[ 71 ] A preliminary question is whether the Plaintiffs can enforce a term that prohibits tenants from setting thermostats below 18 degrees Celsius. Under the Residential Tenancies Act , s 16(c), the landlord covenants that the premises will meet the minimum standards for housing under the Public Health Act, RSA 2000, c P-37 and corresponding regulations. The Public Health Act Housing Regulation, Alta Reg 173/1999, s 4 [Housing Regulation] sets out that an owner shall maintain the housing premises in compliance with the Minimum Housing and Health Standards , as approved and published by the Minister from time to time. [ 72 ]

Section 8 of the Minimum Housing and Health Standards sets the following minimum standards for heating facilities: 8. Heating Facilities (

a) All heating facilities within a housing premises are to be properly installed and maintained in good working condition, and be capable of safely and adequately heating all habitable rooms, bathrooms, and toilet rooms within the building to a temperature of ; (

i) at least 22 C (71 F), or (

i) maintained at a temperature of at least 22 C (71

F) when the control of the supplied heat in a dwelling is the responsibility of a person other than the occupant. (

b) When the outside temperature is colder than the winter design temperature as referenced in the Alberta Building Code(97)

Section 2.2.1.1 and Appendix C, then the Executive Officer may permit an indoor temperature of less than 22 C (71

F) but greater than 16 C (60 F). [ 73 ] The regulatory scheme sets minimum standards. The legislative scheme does not prevent a landlord from setting a higher standard to protect the landlord’s property, and does not prevent a landlord from requiring tenants to abide by the higher standard.

The enforceability of this alleged term of the Lease Agreement is governed by the law of contract. [ 74 ] The Plaintiffs acknowledge that under the law of contract, one party to the contract cannot unilaterally change the terms of the contract; however, the Plaintiffs argue that there is an exception in cases such as this where expressly permitted by the terms of the contract itself. The Plaintiffs argue the Defendant received notice of the new rule, and therefore it became a term of the Lease Agreement under Clause 20. [ 75 ] The Plaintiffs point to the testimony and affidavit evidence of Ms.

Kelly to establish that the Defendant received notice of the rule requiring tenants to keep thermostats above 18 degrees Celsius. Ms. Kelly testified that she provided the Defendant with a copy of the notice setting out the rule that tenants cannot set thermostats below 18 degrees, by either handing it to him or putting it under his door. Ms. Kelly testified that although she was aware of the Defendant’s work schedule, he would have received the notice because it was handed out around the middle or the end of September. [ 76 ] The Defendant denies that he received notice this new rule.

The Defendant also denies that he failed to follow any rules that he did receive during the tenancy of the Lease Agreement. [ 77 ] It is not necessary for me to decide whether the Defendant received notice of the new rule. As set out above, the evidence does not establish that the Defendant turned the thermostat to the far left position. If the rule requiring tenants to keep the thermostat above 18 degrees is an enforceable term of the Lease Agreement, the evidence does not establish that the Defendant breached this term. The Defendant is therefore not in breach of clause 20 of the Lease Agreement. [ 78 ] In

summary, on the evidence before me, I am not satisfied the Defendant breached the Lease Agreement.

3. Liability: was the Defendant negligent? [ 79 ] The Plaintiffs advance a second cause of action in tort, arguing that the Defendant’s negligence caused damage to the Property. [ 80 ] The essential elements of the tort of negligence are set out by G H L Fridman in The Law of Torts in Canada , 3d ed, (Toronto: Carswell, 2010) at 316-317: The tort of negligence has been "simply" defined as breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.

It is the function of the court to make a decision as to whether or not there has been breach of duty by measuring the action of the defendant against the court's concept of how a reasonably prudent man would have acted in similar circumstances. That language makes explicit the various ingredients of liability for the tort of negligence. To establish such liability, it is necessary for the plaintiff to show: (

I) that he was owed a duty of care by the defendant; (ii) that the defendant should have observed a particular standard of care in order to perform or fulfil that duty; (iii) that he broke his duty of care by failing to fulfil or observe the relevant standard of care; (iv) that such breach of duty caused damage or loss to the plaintiff; (

v) that such damage was not too remote a consequence of the breach so as to render the defendant not liable for its occurrence. [ 81 ] The Defendant, as a tenant, owed the Plaintiffs a duty of care. [ 82 ] The Plaintiffs argue that the Defendant’s conduct fell below the standard of care in three ways:

i) turning the thermostat in Suite 205 to below 18 degrees when the outside temperature was below freezing and when he knew, or ought to have known, that doing so could cause a pipe to burst; ii) being absent from Suite 205 when the thermostat was turned to below 18 degrees when the outside temperature was below freezing; and iii) failing to follow the warning the Plaintiffs provided on a yearly basis during the course of the Defendant’s tenancy, not to turn the thermostat in the suite to below 18 degrees when the outside temperature is below freezing. [ 83 ] Each of these alleged negligent acts assumes that the Defendant turned the thermostat to the far left position, or below 18 degrees.

As set out above, the evidence before me does not establish this fact. [ 84 ] With respect to the second alleged act, being absent from Suite 205 when the outside temperature was below freezing, this cannot in itself be considered negligent. The Plaintiffs suggest that pipes can freeze in a matter of minutes. If leaving one’s residence while the temperature is below freezing were in itself negligent, a tenant who leaves his residence in cold temperatures even for a short period of time would be negligent. This cannot be the case.

Furthermore, the Resident Managers, employees of the plaintiff Fullcorp, were aware that the Defendant would leave Suite 205 for extended periods of time. In fact, Ms. Kelly agreed to check on the Defendant’s fish while he was away. The Defendant’s conduct in leaving Suite 205 while the temperature was below freezing, even for an extended period of time, does not in itself fall below the standard of care. [ 85 ] The Plaintiffs have failed to establish that the Defendant’s conduct fell below the standard of care. The Plaintiffs have not established that the Defendant’s conduct was negligent. 4. Causation

[86] In order to establish liability, the Plaintiffs must prove, on a balance of probabilities, that the Defendant’s negligence orbreach of the Lease Agreement caused the Plaintiffs to suffer damages and loss. [87] It is clear that the ruptured pipe caused flooding and damage to Suite 205 and other parts of the Property. It is not clear,however, what caused the pipe to freeze and burst. [88] Given the above findings that the Defendant did not breach the terms of the Lease Agreement, and that the Defendant’sconduct met the standard of care, it is not necessary to decide the issue of causation.

Nonetheless, I will consider whether the Plaintiffhas established that the Defendant’s conduct caused the pipe to burst. [89] Causation is generally established using the "but for" test. That is, but for the defendant's negligence, would the damages haveoccurred?: Hanke v Resurfice Corp, 2007 SCC 7 at paras 20 - 23. [90] The Plaintiffs’ position is that the pipe burst due to freezing, which was in turn caused by the thermostat being set to the farleft, or “off” position.

The Plaintiffs point to the evidence of a metallurgical engineer who examined the pipe, and also asks the Court totake judicial notice of certain elements of causation. [91] The Defendant did not provide evidence as to the cause of the ruptured pipe. However, in his testimony, the Defendantattempted to undermine the Plaintiffs’ position by questioning why, if the pipe burst due to freezing, there would be hot water and steamescaping from the pipe.

In doing so, the Defendant impliedly takes the position that the pipe did not burst due to freezing. [92] The Plaintiffs’ counsel responded to this argument by asking the Court to take judicial notice of the fact that once a pipe hasburst, as water begins to flow through the pipes, hot water from elsewhere in the building can travel through those pipes and flood intothe suite, thus causing steam. [93] Judges are assumed to have general knowledge about the world and specific facts in it.

However, the test for judicial notice isstrict, as set out by the Supreme Court of Canada in R v Find, 2001 SCC 32 at para 48: Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judiciallynoticed are not proved by evidence under oath. Nor are they tested by cross-examination.

Therefore, the threshold for judicial notice isstrict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject ofdebate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources ofindisputable accuracy: R. v. Potts (1982), (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S.N. Lederman andA.W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055. [94] I decline to take judicial notice of the fact that where a pipe bursts due to freezing, hot water may flow from elsewhere in thebuilding. This is not a generally accepted fact. This fact is also not capable of immediate and accurate demonstration by resort to readilyaccessible sources of indisputable accuracy. This is not the kind of fact that judges can be presumed to know; the party seeking toestablish the fact must lead evidence. [95] This leaves only the evidence of Ms. McFarland, metallurgical engineer, on the issue of causation. [96] Ms.

McFarland is a Metallurgical Engineer at Anderson Associates Consulting Engineers Inc. Ms. McFarland’s curriculumvitae indicates that as a metallurgical engineer, she provides material failure analysis of mechanical parts and equipment. Ms. McFarlandwas not qualified as an expert. [97] Ms. McFarland personally examined the ruptured pipe taken from Suite 205 and provided the following opinion:

5. In my view it is more probable than not that the pipe burst due to freezing. 6. Freezing is by far the most common cause of pipes bursting. 7. In my opinion, if the heat to the pipe was turned off, freezing would be the most probable cause of the pipe burst. [ 98 ] Ms. McFarland’s report is some evidence that the pipe burst due to freezing. However, her report is based on the fact that the heat was turned off, or in other words, that the thermostat was turned down before the pipe burst. This fact has not been established on the evidence before me. This significantly reduces the weight I give to Ms.

McFarland’s report. [ 99 ] I am not satisfied that, on a balance of probabilities, the pipe burst due to freezing. [ 100 ] Furthermore, there is no evidence before me to suggest that if the pipe did burst due to freezing, it was caused by the thermostat being turned down. Although Plaintiffs’ counsel suggested this was a “matter of common sense”, I disagree. The Plaintiffs did not lead evidence about the working condition of the thermostat, other than the vague recollection of Ms. Kelly that no problems were reported in the time she was Resident Manager.

The Plaintiffs apparently did not have the thermostat inspected after the incident. The Plaintiff did not lead evidence as to whether the plumber did any work to the thermostat in Suite 205, before or after the incident. Even if the pipe burst due to freezing, I am not satisfied, on a balance of probabilities, that the freezing was caused by the thermostat being set to the far left position.

Summary [ 101 ] Based on the above, I highlight the following findings of fact: 1. The thermostat in Suite 205 was set to the far left position on March 6, 2006, the date of the incident. 2. The radiator pipe burst, causing flooding in Suite 205 and other parts of the Property. [ 102 ] The evidence before me does not establish that the pipe burst due to freezing. If the pipe did burst due to freezing, the evidence does not establish that the pipe froze because the thermostat was turned off.

Furthermore, even if the pipe burst due to freezing because the thermostat was turned off, the evidence before does not establish that the Defendant set the thermostat to the far left or off position. [ 103 ] The evidence before does not establish the facts necessary to conclude that the Defendant is liable to the Plaintiffs for the damage caused to the Property. [ 104 ] The action is dismissed. [ 105 ] If the parties cannot agree on costs, they may arrange an application before me to speak to costs within 60 days.

Heard on the 23 rd day of January, 2012. Dated at the City of Edmonton, Alberta this 8 th day of March, 2012. Don J. Manderscheid J.C.Q.B.A. Appearances: C. L. Bond for the Plaintiffs Lee Ambrose Meunier, Appeared on His Own Behalf