Laing Property Corp. et al. v. All Seasons Display Inc. et al., (2000) 140 B.C.A.C. 203 (CA)

• Judge: Rowles, Finch and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 11, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 140 B.C.A.C. 203 (CA);2000 BCCA 467

Laing Prop. v. All Seasons Display (2000), 140 B.C.A.C. 203 (CA);

    229 W.A.C. 203

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. OC.014

Orange Julius Canada Limited et al. (plaintiffs/respondents) v. City of Surrey, Western Fibres Ltd., Gage Babcock & Associates Ltd. et al. (defendants/appellants) and All Seasons Display Inc. et al. (third parties/respondents) and Michael Mylett, Jeri Lynne Cox and Frank Frost (third parties/respondents)

(CA024340)

Orange Julius Canada Limited et al. (plaintiffs/respondents) v. City of Surrey, All Seasons Display Inc., Western Fibres Ltd., Gage Babcock & Associates Ltd. et al. (defendants/respondents) and City of Surrey, All Seasons Display Inc., Western Fibres Ltd., Laing Property Corporation, Gage Babcock & Associates Ltd. et al. (third parties/respondents) and Michael Mylett, Jeri Lynne Cox and Frank Frost (third parties/appellants) and Laing Property Corporation (third party/respondent) and All Seasons Display Inc. et al. (third parties/respondents)

(CA024268) (2000 BCCA 467)

Indexed As: Laing Property Corp. et al. v. All Seasons Display Inc. et al.

British Columbia Court of Appeal

Rowles, Finch and Huddart, JJ.A.

August 11, 2000.

Summary:

A fire in a Christmas display in the common area of a shopping mall caused several tenants both property damage and consequential losses due to business interruption. In three actions, those allegedly responsible for the cause and spread of the fire were sued.

In two separate actions, the tenants sued various defendants: All Seasons (the manufacturer and designer of the display); Gage Babcock (the designer of the mall's sprinkler system); Concord (the mall's security service); Western Fibres (the manufacturer of the artificial snow used in the display) and the City of Surrey (the municipality in which the mall was located). Laing (the landlord) was not named as defendant in either action, but the defendants brought third party proceedings against the landlord and its employees, claiming contribution and indemnity for their alleged negligence.

In the third action, the landlord sued the same defendants as sued by the tenants. The defendants again joined the landlord and its employees as third parties.

Pursuant to rules 18A, 19(24) and 57, the third parties applied to strike out the third party notices in all three actions.

The British Columbia Supreme Court, in a decision reported at [1998] B.C.T.C. Uned. D87, allowed the applications in part. The court struck out the third party proceedings against the landlord in the tenants' actions and against the landlord's employees in the landlord's action. The court refused to strike out the third party proceedings against the landlord's employees in the tenants' actions. The defendants appealed (appeals 1 and 2). In appeal 3, the defendant City of Surrey appealed against the finding that the landlord did not owe the city any duty of care arising from alleged breaches of city bylaws. The appeals were heard together.

The British Columbia Court of Appeal dismissed appeals 1 and 3, but allowed appeal 2.

Contracts - Topic 1167

Formation of contract - Privity of contract - Exceptions - Community of interest - [See second Landlord and Tenant - Topic 1634 ].

Landlord and Tenant - Topic 1634

The premises - Insurance - Agreement by tenant to insure - A fire in a Christmas display in a mall's common area caused tenants property damage and business losses - The leases required the tenants to obtain property insurance in the joint names of the landlord and tenant and stipulated that the policies would waive recourse and subrogation rights against the landlord - The tenants sued various defendants for damages, who joined the landlord and its employees as third parties - The British Columbia Court of Appeal affirmed that the insurance covenants protected the landlord from liability for its, or its employees, negligence and for breach of contract - The covenants imposed upon the tenants obligations to insure without deductibles and in respect of consequential losses as well as property loss damage - See paragraphs 21 to 44.

Landlord and Tenant - Topic 1634

The premises - Insurance - Agreement by tenant to insure - A fire in a Christmas display in a mall's common area caused tenants property damage and business losses - The leases required the tenants to obtain property insurance in the joint names of the landlord and tenant and stipulated that the policies would waive recourse and subrogation rights against the landlord - The tenants sued various defendants for damages, who joined the landlord and its employees as third parties - The British Columbia Court of Appeal held that the landlord's employees were protected from liability by the lease covenants, as the benefit of the covenants, by implication, extended to them, although the employees were not privy to the leases - See paragraphs 82 to 118.

Practice - Topic 1127

Parties - Third party procedure - When available - Bars - A fire in a Christmas display in a mall's common area caused tenants property damage and business losses - The leases required the tenants to obtain property insurance in the joint names of the landlord and tenant and stipulated that the policies would waive recourse and subrogation rights against the landlord - The tenants sued various defendants for damages, who joined the landlord and its employees as third parties - The British Columbia Court of Appeal held that the defendants could not claim a statutory right to contribution and indemnity from the landlord under the Negligence Act, s. 4, because by virtue of the insurance covenants, the landlord could never be liable to the tenants - See paragraphs 45 to 66.

Practice - Topic 1127

Parties - Third party procedure - When available - Bars - A fire in a Christmas display in a mall's common area caused tenants property damage and business losses - The tenants sued various defendants (including the city where the mall was located), for damages, who joined the landlord and its employees as third parties - The British Columbia Court of Appeal held that the city could not claim contribution and indemnity from the landlord under the Negligence Act based on breach of city bylaws - The court noted that there was no nominate tort for breach of statute and the Municipal Act contained no power conferring a right to seek contribution and indemnity for breach of statute - See paragraphs 119 to 138.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - Appellants sought to advance on appeal arguments that were not made before the summary trial judge - Also, the appellants had not pleaded the issue and no evidence was adduced or submissions made on it at the summary trial - The British Columbia Court of Appeal held that the court should decline to hear or adjudicate upon the issue - See paragraphs 67 to 72.

Torts - Topic 275

Negligence - Breach of statute - General principles - [See second Practice - Topic 1127 ].

Cases Noticed:

Smith et al. v. Eaton (T.) Co. et al., [1978] 2 S.C.R. 749; 15 N.R. 315, refd to. [para. 14].

Giffels Associates Ltd. v. Eastern Construction Co. et al., [1978] 2 S.C.R. 1346; 19 N.R. 298, appld. [para. 16].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, appld. [para. 16].

St. Lawrence Cement Inc. v. Wakeham & Sons Ltd. (1995), 86 O.A.C. 182; 26 O.R.(3d) 321 (C.A.), refd to. [para. 24].

Bow Helicopters Ltd. v. Bell Helicopter Textron and Avco Lycoming Engine Group (1981), 31 A.R. 49; 125 D.L.R.(3d) 386 (C.A.), refd to. [para. 24].

Tony & Jim's Holdings Ltd. et al. v. Silva (1999), 118 O.A.C. 236; 170 D.L.R.(4th) 193 (C.A.), refd to. [para. 24].

Madison Developments Ltd. et al. v. Plan Electric Co. et al. (1997), 104 O.A.C. 194; 36 O.R.(3d) 80 (C.A.), refd to. [para. 24].

Majestic Theatres Ltd. v. N.A. Properties Ltd. (1985), 57 A.R. 210 (C.A.), refd to. [para. 26].

Jarski v. Schmidt (1987), 26 C.C.L.I. 94 (Ont. Dist. Ct.), refd to. [para. 26].

Cummer-Yonge Investments Ltd. v. Agnew-Surpass Shoe Stores Ltd., [1976] 2 S.C.R. 221; 4 N.R. 547, refd to. [para. 27].

Northwestern Metal & Salvage Ltd. v. Alltar Roofing Ltd. (1994), 25 C.C.L.I.(2d) 116 (Alta. C.A.), refd to. [para. 29].

Mayfair Fabrics v. Henley (1967), 234 A.2d 503 (N.J.S.C.), refd to. [para. 39].

Gabin (Monique) Ltd. v. Pacific Centre Ltd. et al. (1978), 8 B.C.L.R. 226 (Co. Ct.), refd to. [para. 40].

Brandy Tree Shoppes Inc. v. Westown Plaza Ltd. (1993), 20 C.C.L.I.(2d) 4 (Ont. Gen. Div.), refd to. [para. 40].

Peter v. Anchor Transit Ltd. (1979), 100 D.L.R.(3d) 37 (B.C.C.A.), refd to. [para. 60].

British Columbia Ferry Corp. et al. v. T & N plc et al. (1995), 65 B.C.A.C. 118; 106 W.A.C. 118; 16 B.C.L.R.(3d) 115 (C.A.), refd to. [para. 65].

Tucker v. Asleson et al. (1993), 24 B.C.A.C. 253; 40 W.A.C. 253; 102 D.L.R.(4th) 518 (C.A.), reving. in part (1991), 86 D.L.R.(4th) 73 (B.C.S.C.), refd to. [para. 65].

McFee v. Joss, [1925] 2 D.L.R. 1059 (Ont. C.A.), refd to. [para. 69].

Trans-Canada Forest Products Ltd. v. Heaps, Waterous Ltd. et al., [1952] 3 D.L.R. 637 (B.C.S.C.), refd to. [para. 69].

Trans-Canada Forest Products Ltd. v. Heaps, Waterous Ltd. et al., [1954] S.C.R. 240, refd to. [para. 69].

Yule v. Parmley and Parmley, [1945] 2 D.L.R. 316 (B.C.C.A.), refd to. [para. 69].

Birmingham & District Land Co. v. London & North Western Railway Co. (1886), 34 Ch. D. 261 (C.A.), refd to. [para. 69].

Baker v. British Columbia Insurance Co. (1993), 76 B.C.L.R.(2d) 367 (C.A.), refd to. [para. 71].

Ship Cairnbahn, Re, [1914] P. 25 (C.A.), refd to. [para. 73].

Cominco Ltd. v. Canadian General Electric Co. (No. 2) (1983), 4 D.L.R.(4th) 186 (B.C.C.A.), refd to. [para. 76].

Leischner v. West Kootenay Power & Light Co. (1986), 24 D.L.R.(4th) 641 (B.C.C.A.), refd to. [para. 76].

United Services Funds (Trustees of) v. Richardson Greenshields of Canada Ltd. (1988), 48 D.L.R.(4th) 98 (B.C.S.C.), refd to. [para. 77].

Greenwood Shopping Plaza Ltd. v. Beattie and Pettipas, [1980] 2 S.C.R. 228; 32 N.R. 163; 39 N.S.R.(2d) 119; 71 A.P.R. 119, dist. [para. 82].

Greenwood Shopping Plaza Ltd. v. Buchanan (Neil J.) Ltd. - see Greenwood Shopping Plaza Ltd. v. Beattie and Pettipas.

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, addendum 147 N.R. 336; 21 B.C.A.C. 159; 37 W.A.C. 159, appld. [para. 82].

London Drugs Ltd. v. Kuehne & Nagel International Ltd. - see London Drugs Ltd. v. Brassart and Vanwinkel.

Edgeworth Construction Ltd. v. Lea (N.D.) & Associates Ltd. et al., [1993] 3 S.C.R. 206; 157 N.R. 241; 32 B.C.A.C. 221; 53 W.A.C. 221, refd to. [para. 93].

Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; 245 N.R. 88; 127 B.C.A.C. 287; 207 W.A.C. 287; 176 D.L.R.(4th) 257, refd to. [para. 93].

Froese v. Montreal Trust Co. of Canada et al. (1996), 76 B.C.A.C. 81; 125 W.A.C. 81; 20 B.C.L.R.(3d) 193 (C.A.), refd to. [para. 106].

Employers Casualty Co. v. Wainwright (1970), 473 P.2d 181 (Colo. Ct. App.) (cert. denied), refd to. [para. 114].

Dunlop Pneumatic Tyre Co. v. Selfridge & Co., [1915] A.C. 847 (H.L.), refd to. [para. 116].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 10 D.L.R.(4th) 641; 29 C.C.L.T. 97; 8 C.L.R. 1, refd to. [para. 125].

Manolakos v. Vernon (City) et al., [1989] 2 S.C.R. 1259; 102 N.R. 249; 63 D.L.R.(4th) 449; [1990] 1 W.W.R. 408, refd to. [para. 125].

Manolakos v. Gohmann - see Manolakos v. Vernon (City) et al.

Rothfield v. Manolakos - see Manolakos v. Vernon (City) et al.

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 245, appld. [para. 125].

Coquitlam (City) v. Construction Aggregates Ltd., [1998] B.C.T.C. Uned. G53; 49 M.P.L.R.(2d) 1 (S.C.), not appld. [para. 136].

Whistler Cable Television Ltd. v. Ipec Canada Inc. (1992), 75 B.C.L.R.(2d) 48 (S.C.), not appld. [para. 136].

Statutes Noticed:

Municipal Act, R.S.B.C. 1996, c. 323, sect. 750, sect. 751 [para, 126].

Negligence Act, R.S.B.C. 1996, c. 333, sect. 1 [para. 75]; sect. 4 [para. 56].

Counsel:

J.R. Singleton, Q.C., and K. McLean, for Gage Babcock & Associates;

D.A. Lester and B. Cornish, for Western Fibres Ltd.;

M.C. Woodward, for the City of Surrey;

J.P. Kennedy, for all tenants;

G. Neen, for All Seasons Display;

P.W. Walker and A. Sayn-Wittgenstein, for Laing Property et al.

These appeals were heard on March 29, 30 and 31, 2000, at Vancouver, British Columbia, before Rowles, Finch and Huddart, JJ.A., of the British Columbia Court of Appeal.

Finch, J.A., delivered the following judgment for the Court of Appeal on August 11, 2000.