2014 NBCA 36, 2014 NBCA 36

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 151-12-CA EVA HICKEY (Plaintiff) APPELLANT EVA HICKEY (Demanderesse) APPELANTE - and - - et - NEW BRUNSWICK HOUSING CORPORATION (Defendant) RESPONDENT SOCIÉTÉ D'HABITATION DU NOUVEAU-BRUNSWICK (Défenderesse) INTIMÉE Hickey v. New Brunswick Housing Corporation,2014 NBCA 36 Hickey c.

Société d’habitation du Nouveau-Brunswick, 2014 NBCA 36 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : l’honorable juge Robertson l’honorable juge Bell l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: October 15, 2012 Appel d’une décision de la Cour du Banc de la Reine : le 15 octobre 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 333 Décision frappée d’appel : 2012 NBQB 333 , 2012 NBBR 333 Preliminary or incidental proceedings: Court of Appeal: [2012] N.B.J.

No. 432 Procédures préliminaires ou accessoires : Cour d’appel : [2012] A.N.-B. no 432 Appeal heard: September 25, 2013 Appel entendu : le 25 septembre 2013 Judgment rendered: June 4, 2014 Jugement rendu : le 4 juin 2014

Reasons delivered : July 31, 2014 Motifs déposés : le 31 juillet 2014 Reasons for judgment by: The Honourable Justice Robertson and The Honourable Justice Green Motifs de jugement : l’honorable juge Robertson et l’honorable juge Green Concurred in by: The Honourable Justice Bell Souscrit aux motifs : l’honorable juge Bell Counsel at hearing: For the appellant: D. Paul Hayes For the respondent: Maya A. Hamou Avocats à l’audience : Pour l’appelante : D. Paul Hayes Pour l’intimée : Maya A. Hamou THE COURT The appeal was allowed in accordance with the judgment of this Court delivered on June 4, 2014.

Herein are the supporting reasons. The judgment of the Court was delivered by ROBERTSON and GREEN, JJ.A. I. Introduction [ 1 ] At all material times, the appellant Eva Hickey was a tenant of the respondent, New Brunswick Housing Corporation (“N.B. Housing”). She sustained injuries from a fall, which occurred on an outdoor stairway located in front of her apartment building. Ms. Hickey alleged the fall was caused by the negligent failure of N.B. Housing to effect the needed repairs. Following a hearing pursuant to Rule 80 (Small Claims) of the Rules of Court , N.B.

Reg. 82-73, a judge of the Court of Queen’s Bench, Trial Division, dismissed her claim, with costs. Ms. Hickey now appeals that decision. For the reasons which follow, we allowed the appeal in a judgment which issued on June 4, 2014. II. Background

[ 2 ] Ms. Hickey has been a tenant of N.B. Housing since 1987 and has occupied the same unit which is located in Dalhousie, New Brunswick. The incident at the heart of the present litigation took place on May 8, 2010. Ms. Hickey was one month away from her fifty-fifth birthday. [ 3 ] In common with the other units in her building, a metal staircase descends from a concrete walkway in front of Ms. Hickey’s apartment. According to her testimony, spring thawing would cause a gap to open between the top of the staircase and the walkway.

A metal plate had been attached to the top of the stairway, apparently to keep the stairs in contact with the walkway. Photographs entered into evidence at trial clearly show the existence of the gap. [ 4 ] On the day in question, the sandal worn by Ms. Hickey on her right foot caught on the lip of the metal plate, and she fell down the stairs. Although Ms. Hickey attempted to break her fall by reaching for the hand railing on the stairs, she was unable to do so. Ms.

Hickey sustained various injuries, including a broken toe, cuts and bruising to other toes, scraped knees and elbows, bruising of the breast, and soft tissue injuries to her shoulder. At the time of trial, Ms. Hickey testified that she continued to experience difficulties with her foot, arm and shoulder, all of which she attributed to the injuries caused by her fall. Among other problems, Ms. Hickey testified to having difficulty walking, and a diminished ability to do both her work in the bakery department of a local grocery store, and her housekeeping.

The trial judge made a provisional assessment with respect to general and special damages: $15,000 and $259, respectively. [ 5 ] As to the liability issue, it has always been common ground that Ms. Hickey was aware of the gap in the walkway (the “defect”) prior to the date of her fall. Much of the evidence at trial focused on two issues: (1) whether Ms. Hickey had reported the defect to N.B. Housing, as required under the terms of the lease; and (2) whether N.B. Housing’s inspection and maintenance program met the requisite standard of care.

With respect to the first issue, a term of the written lease obligated the tenant to “cooperate with the lessor in the care and maintenance of the building in which the leased premises are located” and also to report to the landlord any “need for repair of the building”. The evidence disclosed that over the 23 years Ms. Hickey had been a tenant of N.B. Housing, she had filed “complaints” with respect to the need for various repairs on approximately 70 occasions. While she testified that she had reported the gap in the stairway and the need for repair to N.B. Housing prior to the fall, N.B.

Housing had no record of her complaint. The trial judge accepted this evidence over that of Ms. Hickey. [ 6 ] Turning to the issue of whether N.B. Housing had adopted an inspection program that met the requisite standard of care, the trial judge outlined in detail the maintenance program which N.B. Housing had in place at the time of Ms. Hickey’s fall. The relevant evidence was provided by the technical services manager for N.B. Housing. He testified that N.B. Housing maintains 294 public housing units and an additional 72 homes in the Restigouche region of the Province, including Ms.

Hickey’s apartment. [ 7 ] The technical services manager testified that the housing authority’s maintenance program has two “distinct maintenance and inspection systems”. The first is known as “modernization and improvement”. On an annual basis, each of the public housing units is inspected by him and the Chief Engineer for the Province.

Deficiencies are identified for all properties and units, and then work is prioritized having regard to the fact that this public housing authority has a limited annual budget. [ 8 ] The second component of the inspection program is referred to as the “routine maintenance program”. This program is ongoing throughout the year. In the words of the trial judge, it “is driven by deficiencies reported directly by tenants as opposed to [the] annual inspections”. In other words, a tenant identifies a problem, and the respondent acts upon the complaint.

These complaints are received by members of the administrative staff, who refer the reports to N.B. Housing’s maintenance department. This department then generates a work order, and schedules someone to visit the property, conduct an inspection, and presumably rectify the problem. The technical services manager testified that, in his estimation, 99% of the routine maintenance work conducted has its genesis in complaints from tenants. [ 9 ] In comprehensive reasons, now reported at 2012 NBQB 333 , 395 N.B.R. (2d) 285 , the trial judge ruled N.B.

Housing had a “reasonable maintenance and inspection system in place” to guard against what was an “obvious peril”. Hence, N.B. Housing could not be expected to “rectify a problem which had not been specifically reported”. Correlatively, as N.B. Housing had not breached the requisite standard of care, there was no need to deal with the issue of Ms. Hickey’s contributory negligence. For greater certainty, the trial judge held that, as Ms. Hickey had a positive (contractual) duty to report the defect to N.B. Housing, she breached that duty and, consequently, “her claim in negligence must fail”. III. The Issues

[10] In our respectful view, the trial judge erred in three material respects. First, she relied on two trial decisions thatare arguably at odds with the jurisprudence of this Court. Those decisions could lead one to understand that a tenant, who is aware of adefect that poses a risk of personal injury, and who subsequently suffers injury as a result of the defect, cannot recover damages asagainst the landlord. The tenant is the author, so-to-speak, of her own misfortune: Kincade v. New Brunswick Housing Corporation(1999), (NB KB), 209 N.B.R. (2d) 367, [1999] N.B.J. No. 34 (Q.B.) (QL); Fournier v.

Grebenc, 2003 NBQB 221,[2003] N.B.R. (2d) (Supp.) No. 28; compare with Szezendor v. Saint John (City), 2002 NBQB 370, 255 N.B.R. (2d) 127. As will beexplained, whether or not the tenant was aware of the unsafe defect is a question that goes to the issue of contributory negligence, not theliability of the landlord. [11] The second error of the trial judge is tied to the first. Recall that the trial judge held Ms. Hickey had failed tocomply with her contractual obligation to notify N.B. Housing of the defect in the walkway. Further, the trial judge held this failure to berelevant to the success of Ms.

Hickey’s action in negligence for breach of the requisite standard of care. As will be explained, a tenant’scontractual obligation to report needed repairs, that pose a risk to public safety, cannot be transformed into an exemption clause whichrelieves landlords of their common law obligation to provide tenants with common areas, such as walkways and staircases, which are“reasonably safe”. [12] The third error of the trial judge is tied to her finding that N.B. Housing had adopted an “adequate program”for identifying and remedying defects pertaining to the common areas of the apartment complex.

In our respectful view, the program wasnot adequate (reasonable) for two reasons. First, according to the trial judge’s factual determinations, the annual inspections were carriedout for the limited purpose of identifying and prioritizing needed capital expenditures. The inspections were not carried out for thepurpose of identifying defects that pose a risk to the personal safety of those who make use of common areas, such as walkways.

Second,the fact that tenants were obligated to report to the landlord the need for repairs is not a substitute for a standard of care which is for thebenefit of all those seeking access or egress to the apartment complex. Above all, landlords should not be able to avoid tortious liabilitysimply by transferring their inspection obligations to their tenants. IV. Analysis [13] In our view, the standard of care expected of N.B. Housing embraced the obligation to adopt a reasonablybalanced inspection regime.

Such a regime would balance what is practical in the circumstances with what is commensurate withreasonably perceived potential risks to the personal safety of tenants and those who must make use of common areas, includingwalkways and staircases. Having regard to the underlying facts, as found by the trial judge, the inspection regime which N.B. Housinghad in place failed to meet the requisite standard and, therefore, intervention on our

part is warranted. As to the applicable standard ofreview, see The Roman Catholic Bishop of Edmundston v. Moreau, 2011 NBCA 26, 371 N.B.R. (2d) 360, per Drapeau C.J.N.B. at para.22, and the cases cited therein including Hatty v. Reid, 2005 NBCA 5, 279 N.B.R. (2d) 202, per Larlee J.A, at para. 14. [14] Any legal analysis must begin with the decision of this Court in Frampton v. Lackman, [1958] N.B.J. No. 28(C.A.) (QL). Regrettably, that case was overlooked by both counsel and the trial judge and the same holds true of other trial decisionsrendered after Frampton was decided.

The essential facts of that case are not complicated. The plaintiff tenant rented an apartment fromthe defendant landlord. It was also agreed that the tenant would have the right of access and the right to use the roof of the apartmentbuilding to erect a clothesline. The landlord had built a “board walk” adjacent to the door leading to the roof. Unfortunately, the dropfrom the door to the boardwalk was 3 ½ inches and the platform was not large. Additionally, the weighted door posed a problem to aperson attempting to gain access to the clothesline.

The tenant slipped and suffered “[a] fracture of the left ankle, a fracture of the lowerend of the tibia and fibula and a dislocation of the ankle joint” (para. 8). The trial judge dismissed the tenant’s action on the basis that thetenant, as licensee, should have been aware of the “potential hazard”. The Court of Appeal reversed the decision based on the followinglegal framework initially set out in Dunster v. Hollis, [1918] 2 K.B. 795. Our Court held: Dunster v. Hollis, [1918] 2 K.B. 795, is a case frequently referred to. The defendant let rooms in a house to several tenants.

A commonflight of steps, leading from the ground floor to the street, were not part of the demise to any of the tenants but were retained in thecontrol of the defendant and were intended for the use of all the tenants. The steps were very old and inconvenient, less than a foot wideand slanted down toward the street. They had been covered with cement but on the two lowest steps the cement had given way. Whilethe plaintiff, a tenant, was descending the steps he tripped and fell at the last step but one and was injured.

At p. 803 is found thefollowing passage in the judgment of Lush J.: "The second question, therefore, is whether the tenant has a right to sue the lessor fordamages if he proves that the lessor was negligent in allowing the steps to be out of repair, even though the defect was visible andobvious. In other words, is the lessor merely under an obligation to avoid exposing the tenant to a trap or is he liable if through want ofcare he allows the premises to be in an unsafe condition? In my opinion the latter is the correct view.

I do not see how a lessor who hasimpliedly undertaken to keep the access reasonably safe can avoid liability by proving that the tenant knew that the steps were old, worn,and defective. That fact may be a good ground for the conclusion that the plaintiff was guilty of contributory negligence, but I must holdthat that in itself affords no answer to the action." [para. 15]

[15] In

summary, a landlord is responsible for failing to maintain the common areas in a safe condition and may beliable in negligence to the tenants, even though the defect is plain and obvious. The fact the tenant was aware of the defect goes to theissue of contributory negligence. Above all, the tenant’s prior knowledge of the defect does not negate the landlord’s liability for failingto comply with its common law obligation.

The landlord must effect repairs with respect to defects that pose a risk of harm to tenants andall others who make use of the common areas. [16] One should not underestimate the precedential significance of both Dunster v. Hollis and Frampton v.Lackman. Prior to those decisions, landlords were immune from liability, with respect to those areas that remained within the control ofthe landlord (the so-called common areas), unless the defect qualified as a “concealed trap” or “unusual danger” of which the landlordknew or ought to have known. The decision of this Court in Pelletier v.

Albert (1976), (NB CA), 13 N.B.R. (2d) 211,[1976] N.B.J. No. 53 (C.A.) (QL), sets out the earlier principles: It is also well settled that where an injury is suffered by a tenant or by his invitee or licencee owing to a defect, of which the ownerknows or ought to have known, in a part of the premises which the owner retains in his possession and control, the owner will be heldliable in negligence for such injury, where the defect constitutes a concealed danger or trap to the injured person and where at the timethe injury occurred the injured person is exercising ordinary care: Miller v.

Hancock, [1893] 2 Q.B. 177; Kennedy v. Shotts Iron Co.,[1913] S.C. 1143; Mellon v. Henderson, [1913] S.C. 1207. [para. 9] [17] Parenthetically, the liability of the landlord in regard to the common areas assumed greater complexity whenconsideration was given to the landlord’s common law obligation to non-tenants. This is because of the distinctions historically drawn inlaw between “occupiers” of land and those who qualify as “invitees”, “licensees” or “trespassers”. However, those distinctions are nolonger of relevance in this Province.

Section 2 of the Law Reform Act, R.S.N.B. 2011, c. 184 has abolished the law of “occupier’sliability”. These matters are discussed amply in McAllister (Litigation guardian of) v. Wal-Mart Canada Inc. (2000), (NB CA), 228 N.B.R. (2d) 230, [2000] N.B.J. No. 300 (C.A.) (QL), per Drapeau J.A. (as he then was) at para. 14, and Hatty v. Reid, perLarlee J.A. commencing at para. 20. See also Brown et al. v. Keenan et al., 2009 NBCA 81, 351 N.B.R. (2d) 122, at para. 3, leave toappeal to S.C.C. refused, [2010] S.C.C.A. No. 9; The Roman Catholic Bishop of Edmundston v.

Moreau, per Drapeau C.J.N.B. at para.16. [18] While the liability of occupiers in New Brunswick is now governed “by the ordinary rules of negligence”, thereis nothing in the historical record to support the understanding that s. 2 of the Law Reform Act was intended to abolish the law ofoccupiers’ liability in those cases where the relationship between the plaintiff and defendant was that of tenant and landlord respectively.Indeed, an occupier of land was either a landlord or a tenant.

In turn, the common law focused on the standard of care owed by either ofthose landowners to those who qualified as a contractual entrant, an invitee, licensee or trespasser: see Office of the Attorney General,Occupiers’ Liability And Trespass to Land Reform For New Brunswick (Discussion Paper), (Fredericton: July 1981).

Be that as it may, itis also apparent that the common law liability of landlords in regard to common areas, that pose a risk to personal safety to tenants, isclosely, if not completely, aligned with the ordinary principles of negligence law. [19] It is also worth noting that after the release of Frampton v. Lackman, this Court affirmed the earlier case lawholding that a duty of care did not arise in circumstances where the stairway was within the “exclusive possession” of the tenant:Ringuette v. Martin (1971), (NB CA), 3 N.B.R. (2d) 598, [1971] N.B.J. No. 38 (C.A.) (QL).

The same point wasmade by this Court in Pelletier v. Albert. Therein, the Court held that the landlord will only be liable for personal injury caused bydefects pertaining to those common areas over which the landlord retained control (para. 13). This understanding of the law wassubsequently confirmed in Gaston v. Fanjoy (1981), (NB CA), 36 N.B.R. (2d) 226, [1981] N.B.J. No. 231 (C.A.)(QL). Quoting again from Dunster v.

Hollis, this Court in Fanjoy held: “A lessor who lets rooms to a tenant and provides a commonstaircase which the tenant must use must come under an implied obligation to keep the access in a reasonably safe condition, otherwisethe tenant cannot enjoy the use of the rooms which he has contracted to take” (para. 16). [20] Finally, we note that the common law duty of care to provide tenants with common areas that are reasonablysafe is consistent with the provisions of The Residential Tenancies Act, S.N.B. 1975, c. R-10.2. Section 3(1)(

d) requires landlords ofresidential premises to “keep all common areas in a clean and safe condition”. Moreover, s. 3(2) states that s. 3(1) applies regardless ofwhether any state of non-repair existed to the knowledge of the tenant before the lease was entered into or arose thereafter. Additionally,s. 9 effectively prohibits landlords from contracting out of their statutory obligations. This leads one to ask whether Ms. Hickey’s tenancyagreement fell within the ambit of that Act. As the issue was not addressed at first instance, we need not venture an opinion with respectto N.B.

Housing’s contention that the answer is “no”. Counsel points to s. 29.1(2) which exempts from the legislation housing projectsfinanced under the National Housing Act, R.S.C. 1970, c. N-10. The record before the trial judge and this Court does not containevidence as to whether Ms. Hickey’s apartment complex was so financed. In the absence of such evidence, one could argue that TheResidential Tenancies Act should be deemed applicable.

However, as there has been no argument with respect to the impact of thatlegislation on the underlying issue, the appeal must be decided in accordance with the principles of the common law and the underlyinglease.

[ 21 ] In

summary, as early as 1958, the law in this Province had reached the point where landlords owed a common law duty of care to tenants to ensure that common areas remained in a safe condition. Furthermore, this Court affirmed that a landlord cannot avoid liability by establishing the tenant was aware of the obvious defect. The knowledge of the tenant goes to the issue of contributory negligence for which the Contributory Negligence Act , , R.S.N.B. 1973, c. C-19, s. 5 was applicable (repealed by R.S.N.B. 2011,

Schedule A, and replaced with the Contributory Negligence Act , R.S.N.B. 2011, c. 131, s. 4). Simply put, a tenant is under an implied obligation to take care of her or his own reasonable safety when using the common areas: Yorke v. Princeton Properties Ltd ., 2003 NBQB 157 , [2003] N.B.R. (2d) (Supp.) No. 16, at para. 19. But that obligation does not relieve the landlord of its obligation framed in terms of a common law duty of care in negligence. [ 22 ] Accepting that N.B. Housing owed Ms. Hickey a duty of care, it remains to be determined whether this landlord breached the applicable standard of care.

Loosely formulated, that standard imposes an obligation on landlords to keep the common areas in a “reasonably safe condition”. It is equally clear in law that landlords are unable to avoid liability by pleading ignorance of the defect. This is because the landlord may be liable where the tenant suffers an injury because of a defect of which the landlord “ought to have known”. When the standard of care is so framed, the landlord is obligated to adopt reasonable measures to ensure that defects posing a risk of personal injury are identified and the necessary remedial steps are taken.

Inevitably, those reasonable measures translate into a duty to adopt a system of inspection. In that regard, we are guided by the standard of care formulated in a decision of the Newfoundland and Labrador Court of Appeal which this Court quoted with approval in Hatty v. Reid , at paras. 22-23 . In Gallant v. Labrador City-Schefferville , 2001 NFCA 22 , [2001] N.J.

No. 118 (QL) , the standard of care was expressed as follows: “the occupier can generally discharge the evidential burden by establishing he has a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what is commensurate with reasonably perceived potential risk” (para. 27). In our view, that formulation should apply equally to cases involving a landlord and tenant relationship. [ 23 ] The trial judge recognized that N.B.

Housing had adopted “two distinct maintenance and inspection systems in the management of their housing units”. As noted earlier, the first involved an annual inspection of each housing unit. This inspection was carried out by the technical services manager and the Chief Engineer for the Province. As outlined earlier, within the “Restigouche” area, where Ms. Hickey resided, N.B. Housing maintains 294 public housing units, as well as 72 homes. The trial judge summarized the purpose of the annual inspections as follows: All deficiencies are identified during the course of these inspections.

Once inspections have been carried out on all the provincial properties, the priorities are then put in place based on budgetary restraints. Each year, certain properties are modernized or improved with the funds made available from the provincial budget. [para. 16] [ 24 ] Based on the trial judge’s understanding of the first prong of the inspection program, it is evident the annual inspections were not intended to address the legal obligation that rests on N.B. Housing to identify defects posing a risk of personal injury to the tenants and those who make use of the common areas.

Rather, the purpose of the inspections is to detect the need for capital improvements (modernization) with respect to all of the public housing owned by the Province, and then to prioritize which of the needed improvements should be effected, having regard to the limited budget available to N.B. Housing. This understanding is compatible with the realization that the Chief Engineer of the Province was involved in all of the annual inspections. Surely, his or her role in this process is much broader than identifying, for example, defects in walkways occurring as a result of a spring thaw.

Intuitively, the gap in the staircase leading to Ms. Hickey’s apartment complex does not qualify as a capital improvement and the record before us supports that understanding (see facts outlined at paragraph 31 of these reasons). [ 25 ] Above all, this Court cannot embrace a standard of care that permits landlords to undertake repairs to defects that pose a risk to personal safety based solely on the size of their pocketbook, and their subjective appreciation as to which repairs (improvements) require immediate attention, and those that must be deferred until such time as funds become available.

In short, it would be palpably unreasonable to infer that the central purpose of the annual inspections was to identify housing defects which posed a risk to personal safety, such that the Province was entitled to prioritize which of the defects would be remedied to the exclusion of others. As a responsible landlord, it is only reasonable to infer that N.B.

Housing (the Province) was committed to ensuring that all defects, representing a risk of personal injury, would be remedied - not just those that happen to qualify as a “capital improvement”. [ 26 ] Putting aside the annual inspection regime for identifying capital improvements, N.B. Housing sought to avoid liability by arguing that it had implemented and adhered to its “routine maintenance program”.

As the trial judge observed: “Routine maintenance is driven by deficiencies reported directly by tenants as opposed to annual inspections conducted by the technical services manager, inspector, or chief engineer” (para. 16). And as the trial judge explained: In regard to the routine maintenance procedures, this system is triggered when a tenant reports a deficiency to the defendant. These reports are typically received via telephone by the administrative support staff at the defendant's office. The administrative support employees will refer the reports to the maintenance department.

The maintenance department will then generate a work order and

schedule attendance at the property to inspect the situation and effect any necessary repairs. Mr. Boissonneault estimates that 99% of the routine maintenance work they do is generated from complaints received from their tenants. [para. 17]

[27] The trial judge also considered that N.B. Housing’s maintenance program is tenant driven because of aprovision anchored within the written lease.

Section 5(1) of the “General Conditions” reads as follows: To cooperate with the lessor in the care and maintenance of the building in which the lease premises are located including the grounds,which are the lessor's responsibility, and shall report to the lessor any breakage, damage or need for repair of the building in which theleased premises are located, facilities or equipment therein whether the same be occasioned by any act or neglect of the occupants orotherwise. [28] As discussed earlier, Ms. Hickey testified she had reported the gap to N.B. Housing.

Unfortunately, herlandlord had no record of any “complaint” from her or any other tenant with respect to the need for repairs to the defectivestaircase/walkway. Based on that evidence, the trial judge concluded N.B. Housing had no actual notice of the defect. Hence, the pivotalissue is whether N.B. Housing ought to have known of the defect. This leads one to ask whether a maintenance program which is drivenby tenant complaints meets the requisite standard of care. The trial judge assumed as much.

We respectfully disagree. [29] It is arguable whether the lease provision reproduced above is sufficiently broad enough to impose a duty ontenants to report the need for repairs to walkways and other common areas. In our view it does not. The provision speaks only of repairsto the building and of facilities and equipment located therein. Of course, any ambiguity should be resolved in favour of the tenant. Thecontract of lease is a contract of adhesion which undermines a tenant’s common law right to common areas that are reasonably safe: seeH.W. Liebig Co. v.

Leading Investments Ltd., (SCC), [1986] 1 S.C.R. 70, [1986] S.C.J. No. 6 (QL). Moreover, a broadinterpretation of the lease provision would work like an exemption clause: thereby relieving landlords of their obligation to adopt anadequate inspection program and, correlatively, negating the application of the Contributory Negligence Act. More troublesome is thethought of N.B. Housing seeking damages from its tenants for breach of the duty-to-report clause, in circumstances where a non-tenantsuffers injuries in a “slip-and-fall” and seeks recovery from this landlord. Surely, those realities support the narrow

interpretationadopted herein. [30] Having concluded Ms. Hickey was not in breach of her reporting obligation under the lease and that N.B.Housing’s inspection program did not meet the requisite standard of care, the reasonable person ascending the Clapham omnibus islikely to ask a simple question. What type of inspection program should N.B. Housing have adopted in order to meet the requisitestandard (“inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in thecircumstances and what is commensurate with reasonably perceived potential risk”)?

Understandably, the jurisprudence does not attemptto articulate the precise parameters of a sufficient or adequate inspection program. Instead, the case law offers general guidance whilefocusing on the reasonableness of the inspection system the landlord had adopted having regard to the surrounding circumstances:Basque v. Saint John (City), 2002 NBQB 131, 250 N.B.R. (2d) 207, at paras. 73-75; Lanteigne v. New Brunswick Liquor Corp., 2002NBQB 84, [2002] N.B.R. (2d) (Supp.) No. 21, at paras. 94-97. [31] As N.B.

Housing had failed to implement its own internal inspection program to deal with routine maintenanceissues, a finding of liability is not difficult to sustain. But that finding can also be sustained having regard to additional facts. N.B.Housing was aware that the same staircase had earlier posed a risk of personal injury. In 2004, it replaced slabs of concrete and preparedmetal fabrications for the stairs currently in place in order to bridge a gap that materialized during a spring thaw. The work required anoutlay of approximately $1,700.

Prior to that date, the stairway posed a risk to the personal safety of all those who sought ingress oregress to the housing complex. According to the evidence, any repairs after that date would have fallen under the routine maintenanceprogram. Regrettably, that measure was not sufficient to eliminate the risk of personal injury. During a subsequent spring thaw thestaircase shifted again so as to create the gap between the metal sheet and the concrete landing. It was that gap which led to Ms. Hickey’sfall. In the circumstances, N.B.

Housing should have adopted an inspection program that, at the very least, included an inspection of thestaircases and other common areas during the spring months. [32] The liability of N.B. Housing having been established, it is necessary to decide whether fault should beassigned to Ms. Hickey given that she was aware of the gap in the staircase. As the trial judge found no negligence on the part of N.B.Housing, it was unnecessary for her to rule on the matter of apportionment of liability.

That is why the issue of deference does not ariseand this Court must decide the issue in accordance with s. 5 of the Contributory Negligence Act, R.S.N.B. 1973, c. C-19. [33] Having regard to the limited argument advanced in this Court, we are of the view that liability should beapportioned such that Ms. Hickey bears 25% of the fault for failing to exercise the degree of care required in the circumstances of thiscase. That percentage is consistent with the decision of this Court in Gaston v. Fanjoy.

Therein, Hughes C.J.N.B., writing on behalf ofthe Court, affirmed the trial judge’s decision to apportion liability in a case where the tenant slipped and fell on a common stairway, incircumstances where the tenant was aware of the problem but the landlord was not.

V. Disposition [ 34 ] For these reasons, we allowed the appeal and set aside the judgment rendered at first instance. The trial judge’s provisional assessment of damages was affirmed. The damage award was reduced to reflect the apportionment of liability based on the appellant’s contributory negligence (25%). Having regard to Rule 80.27 of the Rules of Court , and the discretion vested in this Court, costs at trial were fixed at $3,500.

Costs on appeal were fixed at $1,500, the matter having been heard on the record below, including the written submissions filed with the Court of Queen’s Bench: see Rule 80.27 and Acadie-Presse Ltée v. Blanchard , 2013 NBCA 58 , 409 N.B.R. (2d) 152 , per Drapeau C.J.N.B. at paras. 43-45, dealing with Rule 79.11, which is similarly worded to Rule 80.27 when it comes to the matter of costs. ____________________________________ J.T. ROBERTSON, J.A. ____________________________________ BRADLEY V. GREEN, J.A. I CONCUR: ___________________________________ B. RICHARD BELL, J.A.