Bakhtiari v. Axes Inv. Inc., (2004) 182 O.A.C. 185 (CA)

• Judge: Weiler, Moldaver and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 06, 2004
• Jurisdiction: Ontario
• Citations: (2004), 182 O.A.C. 185 (CA)

Bakhtiari v. Axes Inv. Inc. (2004), 182 O.A.C. 185 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. FE.028

Zari K. Banihashem-Bakhtiari, Pedrum Sodouri and Pejman Sodouri et al. (plaintiffs/respondents) v. Axes Investments Inc., Alfredo De Gasperis, Tandem Group International Inc., Tandem Group Management Inc., Tandem International Inc., Tandem International Investment Co., Tandem Investments Ltd., Paul Reid, Van Forbell, Merv Doctorow, John Broderick, Robert Macht, John Haughton, Intertec Security & Investigation Limited and City of Toronto (defendants/appellants)

(C37466)

Indexed As: Bakhtiari et al. v. Axes Investments Inc. et al.

Ontario Court of Appeal

Weiler, Moldaver and Armstrong, JJ.A.

February 6, 2004.

Summary:

The plaintiffs sued the defendants for damages suffered from smoke inhalation during a fire in an apartment building.

The Ontario Superior Court, in a decision reported at [2001] O.T.C. 855, allowed the action and apportioned liability amongst a tenant, the owner of the building and the property managers (collectively "Axes") and the City of Toronto. In a decision reported at [2001] O.T.C. 855, the court, inter alia, awarded the counsel fees to the plaintiffs on a substantial indemnity scale at $1,120,000, plus a premium of $350,000 and disbursements of $193,402. Axes appealed the apportionment of liability, the quantum of general damages for the plaintiffs, future loss of income and the costs of the appeal. The plaintiffs cross-appealed respecting two aspects of future care costs.

The Ontario Court of Appeal allowed the appeal and cross-appeal in part.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - Banihashem-Bakhtiari, aged 41, suffered permanent organic brain damage due to hypoxia, CO poisoning and smoke inhalation from a fire - The trial judge found that she was reduced from an independent, respected, confident, self-supporting, employed mother of two sons who looked to her for guidance, to an unemployable, unsociable, dependent person - She could not travel for pleasure - Her short-term memory was very bad - She had reasonable health, except for her shoulder and neck pain and a normal life expectancy, but she had severe cognitive deficits - The result of her injuries had devastated her former life - She had a reasonable possibility that she would suffer from early dementia - The trial judge awarded Banihashem-Bakhtiari general damages of $225,000 - The Ontario Court of Appeal held that the award was at the high end of the range but declined to interfere with the award - See paragraphs 19 to 21.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - Pedrum Sodouri, aged 20, suffered permanent mild cognitive deficits due to hypoxia, CO poisoning and smoke inhalation from a fire - The trial judge found that there was a 10% possibility that he would suffer from early dementia - He retained sufficient intellectual capacity to achieve an engineering degree, but his career might suffer - The emotional/psychological consequences of the fire altered his personality, restricting his ability to engage in a full social life and burdening him with chronic anxiety and emotional constriction - The trial judge awarded him general damages of $100,000 - The Ontario Court of Appeal held that the award was at the high end of the range but declined to interfere with the award - See paragraphs 22 and 23.

Municipal Law - Topic 1707

Liability of municipalities - General and definitions - Liability for negligence in the exercise of a statutory power - The plaintiffs sued the defendants for personal injuries suffered during a fire in a high-rise apartment building - Doctorow's careless handling of a cigarette caused the fire in his apartment - He fled and left his suite and balcony doors open - The trial judge held that the City of Toronto negligently failed to require self closing devices (SCDs) on all suites in accordance with its own bylaw - The owner of the building and the property managers (collectively "Axes") breached its duty to take positive action to make its premises reasonably safe when it bought the building in 1986 - Further, it knew or ought to have known of recent developments relating to fires in high rises and to have placed SCDs on all suites - Axes was negligent in failing to properly maintain a SCD on the 5th floor stairwell door (a fire door) - The Ontario Court of Appeal apportioned liability to Doctorow, Toronto and Axes as 20%, 35% and 45% respectively - See paragraphs 8 to 18.

Municipal Law - Topic 1809

Liability of municipalities - Negligence - Standard of care - Fire protection - [See Municipal Law - Topic 1707 ].

Municipal Law - Topic 1814

Liability of municipalities - Negligence - Enforcement of bylaw - [See Municipal Law - Topic 1707 ].

Practice - Topic 7429

Costs - Solicitor and client costs - Measure of solicitor and client costs - Counsel fees (incl. premium) - The plaintiffs suffered permanent brain damage due to hypoxia, CO poisoning and smoke inhalation from a fire in their apartment building - The trial judge awarded counsel fees to the plaintiffs on a substantial indemnity scale at $1,120,000, plus a premium of $350,000 - The trial judge considered the defendants' failure to: respond to the plaintiffs' attempts to settle, admit any liability, respond in a timely way to requests for advance payments to assist in one plaintiff's rehabilitation and to admit in a timely fashion that one plaintiff would never return to work - The premium represented the cost to the plaintiff's law firm of carrying the costs of the plaintiffs' litigation (unpaid counsel fees and disbursements) since 1995 - The Ontario Court of Appeal held that the costs award was generous - However, there was no basis to interfere except for two matters - First, the trial judge erred in awarding costs against the defendants in a medical malpractice action in which the defendants were not parties - Second, he erred in awarding costs on a substantial indemnity basis rather than partial indemnity basis respecting the plaintiffs' counsel's appearance at an inquest into the fire - See paragraphs 32 to 45.

Practice - Topic 7453

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Delaying tactics and unduly prolonging proceedings - [See Practice - Topic 7429 ].

Torts - Topic 45

Negligence - Standard of care - Particular persons and relationships - Landowners or occupiers of land - [See Municipal Law - Topic 1707 ].

Torts - Topic 3589.1

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Fire escapes, doors etc. - [See Municipal Law - Topic 1707 ].

Torts - Topic 3666

Occupiers' liability or negligence for dangerous premises - Use pursuant to contract - Standard of care - Particular premises - Landlord - [See Municipal Law - Topic 1707 ].

Cases Noticed:

MacMillan et al. v. Ontario (Minister of Transportation and Communications) (1998), 64 O.T.C. 285 (Gen. Div.), refd to. [para. 21].

Padfield v. Martin (2003), 172 O.A.C. 256; 64 O.R.(3d) 577 (C.A.), refd to. [para. 21].

Counsel:

Barry A. Percival, Q.C., for the appellants;

Stuart Forbes, Q.C., for the City of Toronto;

Ian W. Outerbridge, Q.C. and Cynthia R.C. Sefton, for the respondents.

This appeal was heard on January 6 and 7, 2004, before Weiler, Moldaver and Armstrong, JJ.A., of the Ontario Court of Appeal, who released the following decision on February 6, 2004.