Bourgeois v. Killam Properties Inc. et al.,

• Jurisdiction: New Brunswick
• Judge: McNally, J.
• Neutral Citation: 2016 NBQB 70
• Citation: (2016), 448 N.B.R.(2d) 363 (TD),2016 NBQB 70,448 NBR(2d) 363,(2016), 448 NBR(2d) 363 (TD),448 N.B.R.(2d) 363
• Date: 10 March 2016
• Court: Court of Queen's Bench of New Brunswick (Canada)

Bourgeois v. Killam Prop. Inc. (2016), 448 N.B.R.(2d) 363 (TD);

    448 R.N.-B.(2e) 363; 1179 A.P.R. 363

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Temp. Cite: [2016] N.B.R.(2d) TBEd. AP.014

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.014

Eve Marie Bourgeois (plaintiff) v. Killam Properties Inc. (defendants) and Randy McNicholl (third party)

(M/C/416/13; 2016 NBQB 70; 2016 NBBR 70)

Indexed As: Bourgeois v. Killam Properties Inc. et al.

Répertorié: Bourgeois v. Killam Properties Inc. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

McNally, J.

March 29, 2016.

Summary:

Résumé:

A tenant sued her landlord for damages suffered as a result of a slip and fall on ice covered steps at the landlord's apartment complex. The landlord third partied the contractor who provided the landlord with snow clearing and ice control services. The landlord moved for an order directing the contractor to assume the landlord's defence and to indemnify the landlord for all of the legal costs incurred by the landlord in its defence of the action.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion.

Contracts - Topic 2108

Terms - Express Terms - Indemnity clauses - A tenant sued her landlord for damages suffered as a result of a slip and fall on ice covered steps at the landlord's apartment complex - The landlord third partied the contractor who provided the landlord with snow clearing and ice control services - The landlord moved for an order directing the contractor to assume the landlord's defence and to indemnify the landlord for all of the legal costs incurred by the landlord in its defence of the action - The landlord relied on a save harmless clause in the contract with the contractor - The New Brunswick Court of Queen's Bench, Trial Division, stated that there was no issue that the contractor did not agree to be an insurer of the premises - He did not agree indemnify and save the landlord harmless for the state or condition of the property or for the landlord's or its agents' negligence in maintaining the property in a safe condition over and above what he contracted to do - The specifics of those services and the locations of the services were not very clear - The contract was vague and confusing in many respects - However, it was evident that the contractor did not agree to keep the premises free of snow and ice at all times, 24 hours a day - He only agreed to remove snow and ice in accordance with the terms of the contract and to indemnify and save the landlord harmless for his negligent acts or omissions in performing snow and ice removal services in accordance with the contract - That purported negligence was yet to be determined - The save harmless clause did not obligate the contractor to assume the landlord's defence pending the ultimate determination of the contractor's negligence in performing his part of the contract.

Counsel:

Avocats:

Caitlin Mahoney, for the plaintiff/respondent on the motion;

James M. Barry, for the defendant/moving party;

Ryan T. Murphy, for the third party/respondent on the motion.

This motion was heard on March 10, 2016, by McNally, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on March 29, 2016.