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Case Summary: Stefanyk v Stevens
Defence + Indemnity

A. A tenant was found to be an “occupier” of its premises and potentially liable when a dog lunged at a party on the adjacent sidewalk, causing her to fall on the basis of allegedly having allowed a condition or activity on its premises to flow onto adjacent property.  

Stefanyk v Stevens, 2017 ABQB 402 per Hopkins, J. [4262]

I. FACTS AND ISSUES

The Plaintiff Stefanyk brought claims against the co-defendants Sobeys Capital Incorporation (“Sobeys”), a tenant of the premises, and First Capital (Eastview) Corporation (“Eastview”) (the landlord) as a result of injuries suffered when she tripped and fell while walking on a sidewalk in front of the Sobeys store. She had been walking when a large dog lunged at her, which caused her to trip and fall. The dog was tied to something on the sidewalk and Stefanyk alleged that she did not see the dog due to a cluster of bins located on the sidewalk. The bins were the property of Eastview and put there by Eastview.
 
The Master granted summary dismissal of the claim against Sobeys finding that it was not an occupier under the Occupiers Liability Act, R.S.A. 2000, ch. O-4 (the “Act”) and did not owe a common law duty of care to Stefanyk. The Master found that Sobeys did not owe a duty of care with respect to the sidewalk simply because customers needed to use the sidewalk for entering and exiting the Sobeys. He found that even if a duty of care had existed, Sobeys’ evidence was that it was not aware of the presence of the dog and there was no evidence of some sort of inspection procedure that Sobeys had failed to comply with.
 
Eastview appealed from the Master’s decision, arguing that Sobeys was at all times an occupier under the Act. The relationship between Sobeys and Eastview was governed by a lease which grants tenants an exclusive right to use common areas (including sidewalks) for promotional purposes.
 
On appeal, Eastview also brought an application to file a Notice to Co-Defendant on Sobeys. With it being an appeal from a Master’s decision, the standard of review was correctness and the appeal was heard de novo.
 
Issues on Appeal:

  1. Do the claims that Sobeys was an occupier under the Act have merit?
  2.  Does the claim that Sobeys owed a duty of care to Stefanyk in common law have merit?

II. HELD: For the appellant Eastview; appeal allowed, summary dismissal reversed and Eastview allowed to serve a Notice to co-defendant on Sobeys.

1. The court held that a landlord is not commonly an “occupier”, rather the tenant usually is.

a. Under the Act “occupier” means:

i. A person who is in physical possession of the premises, or
 
ii. A person who has responsibility for and control over the condition of a premises, the activities conducted on those premises and the persons allowed to enter the premises.
 
iii. It also notes there may be more than one occupier.

b. The Justice found that in order for a landlord to have possession and control, it must have the power to permit and exclude people. In this situation, that power was with the tenant Sobeys and not the landlord Eastview. Thus, there was found to be merit to the argument that Sobeys was an occupier under the Act.

2. The Court held that special circumstances can allow for a common law duty of care to be owed by occupiers to people on adjacent property.

a. The first circumstance is when an occupier assumes control of an adjacent property (i.e. a store owner who uses the adjacent sidewalk to display its wares on a continuing basis was found to be an occupier of that sidewalk).
 
b. The second circumstance is that an occupier has a duty to ensure that conditions or activities on its own property does not flow off the property and cause injury to persons nearby. In this case, patrons of Sobeys had almost exclusive use of the sidewalk and thus the activities of dog-owning patrons of the store may flow onto the sidewalk and create a hazard. Based on this, the court found that there was merit to the argument that Sobeys owed Stefanyk a common law duty of care.

3. The Court found that Sobeys had not met the onus for summary dismissal and that viva voce evidence at trial was necessary to determine the question of liability.

III. COMMENTARY 

This was an interesting decision in that the appeal was brought by a co-defendant in order to have another party available to share potential liability and damages. Another aspect to be aware of is that this decision outlines the circumstances where an occupier can be found liable for circumstances that have taken place on adjacent property.