Chamberlain v. Jodoin et al., (2012) 317 B.C.A.C. 280 (CA)

• Judge: Finch, C.J.B.C., D. Smith and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 31, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 317 B.C.A.C. 280 (CA);2012 BCCA 108

Chamberlain v. Jodoin (2012), 317 B.C.A.C. 280 (CA);

    540 W.A.C. 280

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MR.016

Darin Gary Chamberlain (appellant/plaintiff) v. Donna Jodoin doing business as D Marie Hair Company and New Orient Enterprises Ltd. (respondents/defendants)

(CA039144; 2012 BCCA 108)

Indexed As: Chamberlain v. Jodoin et al.

British Columbia Court of Appeal

Finch, C.J.B.C., D. Smith and MacKenzie, JJ.A.

March 2, 2012.

Summary:

Jodoin leased commercial premises from New Orient Enterprises Ltd. An oral term of the lease was that Jodoin was responsible for clearing snow and other debris from the "sidewalk apron" in front of her premises. Chamberlain fell on ice on the sidewalk apron in front of Jodoin's premises. He sued Jodoin and New Orient under the Occupier's Liability Act.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 739, dismissed the action. Chamberlain appealed.

The British Columbia Court of Appeal dismissed the appeal.

Torts - Topic 3551

Occupiers' liability or negligence for dangerous premises - Occupier and premises defined - Occupier defined - Jodoin leased commercial premises from New Orient Enterprises Ltd. - An oral term of the lease was that Jodoin was responsible for clearing snow and other debris from the "sidewalk apron" in front of her premises - Chamberlain fell on ice on the sidewalk apron in front of Jodoin's premises - He sued Jodoin and New Orient under the Occupier's Liability Act - The trial judge dismissed the action, finding, inter alia, that New Orient was not an occupier under the Act - The British Columbia Court of Appeal dismissed Chamberlain's appeal - New Orient did not have the required degree of control over the sidewalk apron to be an occupier - It had assigned to its tenants full responsibility for clearing the snow, ice and any debris from the sidewalk apron and had no control over the activities of individuals who were invited by the tenants to cross the apron in order to access their respective businesses - In addition, New Orient was infrequently present on the sidewalk apron and never accessed the tenants' businesses by way of the apron without their permission and in their presence - See paragraphs 28 to 38.

Torts - Topic 3551

Occupiers' liability or negligence for dangerous premises - Occupier and premises defined - Occupier defined - Jodoin leased commercial premises from New Orient Enterprises Ltd. - An oral term of the lease was that Jodoin was responsible for clearing snow and other debris from the "sidewalk apron" in front of her premises - During the winter months, Jodoin typically shovelled and salted the area as needed - She cleared any snow or ice on Saturday evening before closing for Sunday and Monday - On those days, she did not clear snow or ice unless the snowfall was heavy enough that city snowplows were out clearing the streets - On a Sunday, Chamberlain fell on ice on the sidewalk apron in front of Jodoin's premises - He sued Jodoin and New Orient under the Occupier's Liability Act - The trial judge dismissed the action, finding, inter alia, that, while Jodoin was an occupier of the sidewalk apron, she had taken reasonable care to maintain the area in a safe condition - The British Columbia Court of Appeal agreed with the trial judge that Jodoin had the necessary responsibility and degree of control over the sidewalk apron to make her an occupier of that area under s. 1(b) of the Act - See paragraphs 39 to 44.

Torts - Topic 3554

Occupiers' liability or negligence for dangerous premises - Occupier and premises defined - Respecting sidewalks - [See both Torts - Topic 3551 ].

Torts - Topic 3588

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Sidewalks, walkways, ramps, etc. - Jodoin leased commercial premises from New Orient Enterprises Ltd. - An oral term of the lease was that Jodoin was responsible for clearing snow and other debris from the "sidewalk apron" in front of her premises - During the winter months, Jodoin typically shovelled and salted the area as needed - She cleared any snow or ice on Saturday evening before closing for Sunday and Monday - On those days, she did not clear snow or ice unless the snowfall was heavy enough that city snowplows were out clearing the streets - On a Sunday, Chamberlain fell on ice on the sidewalk apron in front of Jodoin's premises - He sued Jodoin and New Orient under the Occupier's Liability Act - The trial judge dismissed the action, finding, inter alia, that, while Jodoin was an occupier of the sidewalk apron, she had taken reasonable care to maintain the area in a safe condition - The British Columbia Court of Appeal dismissed Chamberlain's appeal - The standard of care for an occupier under the Act or at common law was reasonableness - Before Chamberlain's fall, Jodoin had no knowledge of the risk of ice formation on the apron when her business was closed - There was no evidence that such a risk should have been reasonably foreseeable - Given that the ice formation was rare and that little foot traffic was anticipated on a Sunday, Jodoin met the required standard of care in maintaining the sidewalk apron - See paragraphs 45 to 53.

Torts - Topic 3616

Occupiers' liability or negligence for dangerous premises - Negligence of particular occupiers - Retail store - [See Torts - Topic 3588 ].

Cases Noticed:

Wiley v. Tymar Management Ltd. (1994), 1 B.C.L.R.(3d) 201 (S.C.), affd. (1997), 87 B.C.A.C. 313; 143 W.A.C. 313 (C.A.), refd to. [para. 21].

Zavaglia v. Maq Holdings Ltd. (1983), 50 B.C.L.R. 204 (S.C.), affd. (1986), 6 B.C.L.R.(2d) 286 (C.A.), refd to. [para. 21].

Hodgson v. Christensen, [1989] B.C.J. No. 2322 (S.C.), refd to. [para. 21].

Goldmanis v. Mador, [1991] B.C.T.C. Uned. 620 (S.C.), refd to. [para. 21].

Brown v. Mohawk Property Corp. et al., [1998] B.C.T.C. Uned. 916 (S.C.), refd to. [para. 21].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 23].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 24].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 27].

Lysack v. Burrard Motor Inn and Vancouver (City) (1991), 2 B.C.A.C. 216; 5 W.A.C. 216; 58 B.C.L.R.(2d) 33 (C.A.), dist. [para. 34].

Lemon v. Canada Safeway Ltd. et al. (2001), 157 B.C.A.C. 73; 256 W.A.C. 73; 2001 BCCA 403, refd to. [para. 47].

Counsel:

A. Powell, for the appellant;

D. Lewthwaite, for the respondent, D. Jodoin;

S. Sidhu, for the respondent, New Orient Enterprises Ltd.

This appeal was heard at Vancouver, B.C., on January 31, 2012, by Finch, C.J.B.C., D. Smith and MacKenzie, JJ.A., of the British Columbia Court of Appeal. On March 2, 2012, D. Smith, J.A., delivered the following judgment for the court.