Holmes v Edmunds, 2015 ABQB 798

Court of Queen ’ s Bench of Alberta Citation: Holmes v Edmunds, 2015 ABQB 798 Date: 20151216 Docket: 1301 02141 Registry: Calgary Between: Hailey Holmes by her Litigation Representative Jenny Holmes, Jenny Holmes and Her Majesty the Queen in Right of Alberta Plaintiffs/ Respondents - and - Kristen Edmunds, Jean Edmunds, Todd Howard Froude, Allison Froude also known as Allison Hobbs and Cheyanne Debra Hobbs Defendants/ Applicants _______________________________________________________ Reasons for Decision of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Introduction

[ 1 ] The Applicants, Kristen Edmunds and Jean Edmunds, seek an order dismissing this claim as against them by way of

summary judgment. The parties have filed an Agreed Statement of Facts, an Agreed Exhibit Book, transcripts of questioning, and acknowledge that all evidence that would be called at trial is available and presented now. No new evidence would be expected at trial. Facts [ 2 ] This matter arises out of a dog bite incident on December 3, 2011, at a residence in Didsbury, Alberta, owned by the Applicants. At the time, the premises were being rented by two of the three Defendants pursuant to a Residential Tenancy Agreement, dated May 5, 2010.

The Residential Tenancy Agreement referred to and incorporated a Lease Amendment Agreement, a Pet Agreement and Pet Rules. [ 3 ] Pursuant to these agreements and rules, the tenants obtained approval from the Applicants to have a dog named Marley reside at the residence. Kristen Edmunds had, in fact, met Marley. Marley passed away in the summer of 2010. No dog resided in the premises for the next year until the tenants brought a new dog to the premises in August of 2011 named Chopper. At no time did the Applicants know that Marley passed away, or that a new dog was on the premises.

The tenants did not notify the Applicants or seek permission for the new dog to reside on the premises as was required in the agreements. [ 4 ] On December 3, 2011, the Plaintiffs attended the residence and Hailey Holmes was attacked by Chopper and injured. The Applicants were not advised until approximately September of 2012 of Chopper’s existence or presence at the residence. [ 5 ] The other three Defendants have all been noted in default. Issue [ 6 ] The issue is whether the application meets the test for

summary judgment dismissal. In particular, are the Applicants liable either as occupiers and/or through common law negligence for the injuries suffered by the Plaintiff, Hailey Holmes. Test for

Summary Judgment [ 7 ] Rule 7.3(1)(

b) of the Alberta Rules of Court allows for an application to the court for

summary judgment where there is no merit to the claim. The Alberta Court of Appeal in W.P. v Alberta, 2014 ABCA 404 at para 26 , leave to appeal to SCC refused, 36285 (April 30, 2015), states the question as, “whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily”. [ 8 ] The SCC in Hyrniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87,has confirmed that

summary judgment, rather than a trial, is appropriate where the court is able to reach a fair and just determination on the merits. Liability Pursuant to the Occupiers Liability Act [ 9 ] The occupiers of premises owe a duty to take reasonable care to see that visitors will be safe. The Occupiers Liability Act, RSA 2000, c O-4 , defines an occupier under

section 1 (

c) as:

i) a person who is in physical possession of premises, or ii) a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises. [ 10 ] It is agreed that the Applicants were not in physical possession of the premises. [ 11 ] The Plaintiffs argue that the terms of the Residential Tenancy Agreement and Pet Rules gave the Applicants far reaching control over the condition of the premises, activities conducted on the premises, and persons allowed on the premises.

They give examples such as a ban on smoking, control over modifications to the residence, control over what kind of animal was permitted on the premises, and who could live at the premises. The Pet Rules also dealt with what kind of collar the dog was to wear, vaccinations, picking up of dog excrement, and licensing of the animal. [ 12 ] All of these terms, the Plaintiffs say, show that the Applicants had a degree of control over the premises 24 hours a day, 7 days a week, 365 days a year. [ 13 ] The Applicants argue that is clearly not the case and is contrary to the law in this area.

The provisions of the Residential Tenancy Agreement, as codified in the Residential Tenancies Act , SA 2004, C R-17.1, provide that the tenant is entitled to privacy, quiet enjoyment, and exclusive use of the premises. The only time that the landlord can enter the premises without consent is in an emergency, or when the premises are abandoned, or after having given 24 hours’ notice in writing. [ 14 ] The Applicants have referred to a number of cases which overall say that a landlord does not have control of premises unless the landlord has minute to minute, hour to hour control.

Those cases include Kiceluk v Oliverio , 2001 ABQB 704 , Pauk v Catholic Parish of Saint Nykolaja of Greek Ruthenian Rite to Rome , 2008 ABCA 16 , Champion v Ski Marmot Basin , 2005 ABQB 535 , and McNulty v Edmonton (City) , 2011 ABQB 297 .

[ 15 ] That kind of control is clearly not the case here. Both the agreement and the legislation provide that the landlord cannot enter the premises, except in an emergency or a situation of abandonment, without the consent or permission of the tenant. The fact that the tenant agrees to abide by rules imposed during the tenancy, the breach of which attract repercussions, does not in any way put the landlord in control of the premises as defined in the legislation or case law.

The landlord could not enter the premises at will, could not admit or restrict visitors, and was not in day to day control of activities on the premises or the condition of the premises. [ 16 ] In the circumstances of this case, the Applicants have proven that their likelihood of success is very high in proving that they were not occupiers of the premises under the Occupier’s Liability Act at the time of the incident.

Liability for Negligence in Common Law [ 17 ] In the alternative, the Plaintiffs argue that the Applicants are negligent in common law for breach of their duty of care to the Plaintiffs to ensure the premises were safe from foreseeable dangers. [ 18 ] The Applicant’s response to this argument is that, while technically the Plaintiffs can argue that the Applicants may be liable for negligence in common law, it is virtually impossible to make that argument when the Applicants are not occupiers.

The Applicant’s responsibility was transferred to the tenants who were bound to maintain certain standards under the agreement between the landlord and the tenant. The tenant had a duty of care to ensure the safety of visitors to the premises. [ 19 ] The Plaintiffs raise a novel argument in this case. It is argued that the Pet Rules, which required the tenant to do certain things with respect to any pets, raised the standard of care owed by the landlord to a visitor to the premises. Standard of care is the attention or caution a reasonable person in the circumstances would exercise.

It is argued that the landlord breached this higher standard of care by not enforcing the Pet Rules between the landlord and the tenant. Had they done so, they would have ensured the pets were approved by the landlord, vaccinated, licensed, and certified by a veterinarian not to be aggressive or display harmful tendencies.

Had the landlord enforced these rules, the landlord would have found out that the approved dog, Marley, had died, that there was no dog for a period of a year, and that a new dog was purchased, which would require approval from the landlord. [ 20 ] In a nutshell, the Plaintiffs argue that while the standard of care is the care a reasonable person would take in the circumstances, in this case, by invoking extra diligence to make sure the tenant complied with even stricter rules vis a vis the landlord, the landlord has now elevated the reasonable person standard of care of the landlord to a much higher level.

The landlord then breached that much higher standard of care by not enforcing the rules between the tenant and the landlord. [ 21 ] I disagree with this analysis. While it may create a higher standard of care for the tenant, it does not do so for the landlord. The extra diligence and rules of the landlord create no greater duty to the public and no higher standard of care vis a vis the public than without the addition of the extra Pet Rules. Decision [ 22 ] I am satisfied that the Applicants have met the test for

summary dismissal under the Occupiers Liability Act and under common law for negligence. The Applicants are not occupiers under the legislation, they acted as reasonable landlords and owners and, they took all reasonable steps to ensure that the premises were safe for visitors, including the extra steps relating to pets on the premises. The defence is so compelling that the likelihood that it will succeed is very high.

Summary dismissal with respect to the Applicants, is granted. Heard on the 17 th day of November, 2015. Dated at the City of Calgary, Alberta this 16 th day of December, 2015. C.L. Kenny J.C.Q.B.A. Appearances:

Greg Rodin for the Plaintiffs David B. Kitchen Theresa Yurkewich for the Defendants Kristen Edmunds and Jean Edmunds