Fence Maintenance (LTB)

Youssef v. Misselbrook, 2020 ONCA 83 (CanLII)

[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 judge’s 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.

[5] The appellant takes no issue with the motion judge’s 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 appellant’s 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 judge’s 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 appellant’s 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 appellant’s summary judgment motion. In consequence, the issue of contributory negligence, along with damages, is remitted for determination at trial.