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Monday Morning Case Bites for July 29, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Mehak Holdings Ltd v BBQ To-Night Ltd, 2019 ABQB 556 (CanLII)
Property Fire | Arson | Landlord Negligence

This was a successful summary dismissal application brought by the defendant landlord. The remaining defendants did not defend and were noted in default. The matter related to a fire that occurred at a restaurant in a commercial condominium. The fire then spread to other commercial units in the same complex. The fire was determined to be arson by unknown individuals:

[6]               The fire was investigated by the arson unit of the Calgary Police Service and the investigative report concluded that the fire was deliberately set by unknown individuals by pouring gasoline in the main dining room. The arson report also noted that:

  • The rear exterior lights of the premises had been turned off at the electrical panel
  • The rear door of the premises has been left propped open
  • There were two cans of gasoline in the kitchen area of the premises that were unaffected by the fire. There was no conclusion as to how long these two gas cans had been stored or left in the kitchen area.

An action in negligence was commenced by the owners of the units that the fire spread to, against the owner and occupiers of the restaurant where the fire originated. The alleged negligence included:

[9]               The particulars of negligence alleged against Reena are as follows:

  • Reena was the owner of the premises from which the fire originated and escaped.
  • Reena negligently failed to ensure that the premises had an operational fire detection or fire suppression system when it knew or ought to have known that the nature of BBTN’s restaurant business, and the manner in which it was operated by BBTN, represented a fire risk that might reasonably be anticipated to cause damage to the premises and businesses adjacent to the premises.
  • Reena negligently failed to ensure that the premises had an operational security system when it knew or ought to have known that an undetected intrusion by unauthorized persons into the premises where there was equipment and items that could be used by such intruders to start a fire in the premises that might reasonably be anticipated to cause damage to the premises and businesses adjacent to the premises.
  • Reena negligently failed to ensure that Reena’s tenant, BBTN: kept the premises free of garbage, waste, and other combustible materials; kept the premises secure from intruders; used the security system of the premises, if any; used the fire detection and suppression system, if any; and otherwise observed the covenants of BBTN’s lease from Reena that would ensure that the premises would be reasonably free from the risk of a fire starting in the premises.

The defendant landlord responded that:

[10]           Reena filed an affidavit of one its principals, deposing as follows:

  • After entering into the Lease Agreement, the day to day control and operation of the premises was given to Parveen Khan in accordance with the lease agreement. After June 2011, while Reena remained the owner and landlord of the premises, it no longer occupied the premises in any capacity.
  • As part of the conversion from a fabric/clothing store to a restaurant, Parveen Khan and BBTN performed substantial renovations to the interior of the premises. The City of Calgary inspected and approved the renovations before the restaurant opened for business. In particular, the City of Calgary approved the fire detection equipment (i.e. smoke alarms) installed in the premises. The City of Calgary did not require a fire suppression system (i.e. sprinkler system) to be installed in the premises and there was no sprinkler system put in. According to the City of Calgary inspection, the premises met all building, occupation, fire, safety and related codes.
  • The premises were equipped with security features including a dead bolt and 2 security bars on the rear door to the premises. The premises had an alarm system that was monitored including motion detectors and glass breakage alarms. There were several smoke detectors and fire extinguishers in the premises as well.

The Court found that the Plaintiffs adduced no evidence as to the standard practice for commercial landlords for inspection. The Plaintiffs had not located any case law where a landlord was found liable to adjoining landowners/tenants for a fire caused by an arsonist.

The Court concluded that there is no merit to the claim, and dismissed the action against the defendant landlord.