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Tuesday Morning Case Bites for October 9, 2018

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

Edited by Amanda Kostek & Christie Dewar

Moulson v Hejnar, 2018 ABQB 837
Animal Trespass l Strict liability l Remoteness

Condominium Corporation No 9312374 v Aviva Insurance Company of Canada, 2018 ABQB 674
Summary Judgment l Coverage l Multi-peril Insurance Contract l Faulty Workmanship Exclusion

Condominium Plan No. 0223674 (also known as Devonshire on the Park) v Abbey Homes Ltd 2018 ABQB 826
Summary Judgment l Limitation Period l Series of Negligent Acts or Omissions

Judgment Highlights

Moulson v Hejnar, 2018 ABQB 837

This was an unsuccessful claim for personal injuries of a farmer that occurred after he was struck by a neighbour’s bull.

The Court dismissed the claim in negligence for the alleged failure to maintain the fence. The Defendant was responsible for maintaining half of the fence line in question, however, the maintenance of the fence was irrelevant given the evidence was that the bulls could jump the fence at any point along the north-south span of the fence. The mere presence of bulls outside the enclosure was insufficient to establish negligence, and the defendant demonstrated more than due diligence of fence maintenance.

The Court also dismissed the claim in trespass in common law, and as codified in the Stray Animals Act. The Court did not find that the Act created statutory liability for damages for bodily injury, but also found that the Act did not exclude the common law of trespass. The common law cause of action in animal trespass is one of strict liability, but there is also an element of remoteness:

[20] I was referred finally to Gallant v Murray, 2017 NBQB 13 (CanLII) and Rideout J’s reliance on comments from the Canadian Encyclopedic Digest dealing with trespass resulting from substances placed on the property or animals escaping:

85 At common law there is a duty to keep cattle on one’s own land, and if cattle get onto another’s land it is a trespass, irrespective of any question of negligence. However, if the damage is not such as is likely to arise from such an animal, the plaintiff cannot recover. In making this determination, the test to be applied is whether, according to common knowledge, the animal’s actions were normal in the circumstances.

The Plaintiff chased 3 bulls back onto the neighbouring property. The bull in question did not move. The Plaintiff dismounted from his quad, approached the bull, and heaved a large branch at the bull. The bull then charged at the Plaintiff. The Court dismissed the claim on the following basis:

[34] To paraphrase the rule stated in Cox v Burbridge, strict liability will not apply if the animal in question does something that is quite contrary to its ordinary nature, something which the owner has no reason to expect. And as stated in Laws v Wright, it is the plaintiff’s burden to show that the defendant’s bull – which no one says is a wild animal in law – had a dangerous or mischievous propensity. It is the plaintiff’s further burden to show that the defendant was aware of any such propensity.

[35] There was no evidence at trial regarding the propensity of bulls, or the impugned bull in particular, to charge at persons. Indeed, the only evidence at trial pointed away from any dangerous or mischievous propensity. It was the plaintiff’s own evidence that the animal in question did not seem agitated even after being chased around the plaintiff’s lands by the plaintiff riding his motorized quad. Nor was the animal acting aggressively, for example by pawing the ground or shaking its head. It just wasn’t moving. On the plaintiff’s own evidence, the bull just charged at him. Immediately after, the plaintiff “heaved” a branch at the animal. Not surprisingly, counsel for the defendant argues that the plaintiff was the author of his own misfortune for antagonizing the bull by heaving a branch at it. That well may be – whether or not the branch actually struck the animal – but given the absence of evidence already noted, it is unnecessary to speculate about the effect on the bull of having a branch heaved in its direction, because that evidence certainly creates no new path of liability adverse to the defendant.

Condominium Corporation No 9312374 v Aviva Insurance Company of Canada, 2018 ABQB 674

This was a summary judgment application in which the Court concluded that no coverage existed under the insurance contract. The Respondent Condominium Corporation was insured under a multi-peril contact of insurance issued by Aviva. The Condominium entered into a contract for parking rehabilitation for a parkade. In carrying out the work, the contractor “cut too deeply into the parkade slab, causing damage to the structural integrity of the parkade.” The Respondent then made a claim against its policy with Aviva.

There was no doubt that the policy excluded coverage for faulty workmanship, and the contractor cutting too deeply into the parkade slab was faulty workmanship. However, the issue was whether the exclusion in the policy extended to the damage to the structural integrity of the building, or if it was confined to the cost of correcting the work done by the contractor, which did not include the structural integrity of the parkade.

The Court distinguished the Supreme Court of Canada case in Ledcor on the following basis:

[26] That is distinguishable, and indeed inapplicable to the Policy before me. Here I am considering an all risks property insurance policy, not a builder’s risk policy. Here the only insureds are the owners; not the contractors and not the engineers. Here the “relatively high premium” consideration does not apply. Here the purpose of the Policy is not to provide broad coverage for a construction project, for all involved in that project. In short, this is not a builder’s risk/course of construction policy.

[27] Here the Policy is intended to insure against property damage caused by a peril not otherwise excluded. There is no reasonable expectation that it covers any more, or any less.

[28] Here the Appellant has established that the cost of making good faulty workmanship is the cost not only of the contracted work, but also the cost of repairing the structural integrity of the parkade. The insurer has satisfied its onus of showing that the cost of making good the faulty workmanship is excluded from coverage.

The Court then considered whether the structural damage fell under an exception to the faulty workmanship exclusion. The exception was for loss or damage caused by a resultant peril not otherwise excluded. The Court found that the structural damage was a result, not a peril, so the exclusion did not apply.

Condominium Plan No. 0223674 (also known as Devonshire on the Park) v Abbey Homes Ltd 2018 ABQB 826

This was an unsuccessful summary dismissal application by the Defendant builder, architect, engineer, and municipality on the basis of a limitation period argument. The claim was for design and construction defects resulting in water intrusion.

The Municipality argued that any claims for any alleged negligent actions that occurred more than 10 years before the Statement of Claim was issued were statute barred based on the 10 year ultimate limitation period. This portion of the application was dismissed pursuant to section 3(3)(a) of the Limitations Act, on the basis that where there is a series of negligent acts or omissions, the 10 year ultimate limitation period starts on the date of the last one.

The Court then turned to whether the claim was commenced within 2 years of when the Plaintiff knew or ought to have known that damage occurred, that it was attributable to the defendants, and that it warranted bringing a proceeding. The evidence was clear that some of the alleged defects were known more than 2 years before the claim was issued, but a Trial was necessary to determine which of the alleged defects were statute barred, and the extent to which those resulted in current issues. It was necessary to determine whether the Plaintiff should have known of the earlier defects, and whether an action was warranted. The Court described the building defects as follows:

[26] In this case there was a cascade of consecutively revealed construction and design flaws. A trial judge may well decide that these defendants are entitled to immunity from some or all of the claims, but it is not possible to decide that issue by delineating between the various claims on a pre-trial summary basis, as requested by these defendants.