October 13, 2020 by Greg Meckbach
A courier firm has successfully sued its landlord for $188,000 after the roof of its Halifax area warehouse collapsed under the weight of snow and ice.
In Transport Canpar L.P. v. 3258042 Nova Scotia Limited, released Oct. 8, Justice Richard Coughlan of the Nova Scotia Supreme Court ruled that the premises owned by the numbered firm did not meet the snow load standards of the National Building Code of Canada at the time it was built. The landlord was also found negligent in failing to monitor the snow load capacity of the roof and to properly clean the roof and remove snow and ice from it.
In the four weeks prior to the Feb. 22, 2015 roof collapse, there was 130.3 cm of snow and 32.6 mm of rain, Justice Coughlan noted.
The landlord argued the lease specifically excludes liability on the part of the landlord if snow entered the building.
But Justice Coughlan ruled the lease has an “implied term” that the building had to comply with the code at the time it was built.
Of the $188,000 damage award against the landlord, about $66,000 was from five trucks that had to be written off. Another $37,000 was for reconstructing office premises following collapse and nearly $12,000 was for property clean-up. Another significant component of the award was for damage to the tenant’s parcel conveyor.
Much of the 32-page decision discusses reports from engineering experts.
The pre-engineered structure was made in the 1980s or 1990s but the exact date is unknown. Ultimately, Justice Coughlan found that the roof snow load capacity significantly less than the 42 pounds per square foot stipulated in the 1990 building code. The 1980 and 1985 codes required 55.2 pounds per square foot of snow load.
Each province has its own building code. The National Research Council publishes model building and fire codes every five years. Given the dates the various versions of the national model code was adopted in Nova Scotia, either the 1985 or 1990 editions of the national code could apply to the building leased by Canpar, wrote Justice Coughlan.
If you add up all the snow and rain that fell from Jan. 26 through Feb. 22, 2015 – and ignore snow blowing off and melting – there would be about 27 pounds per square foot on the roof of Canpar’s building, Justice Coughlan found. Another 1.2 inches of rain would add 6.66 pounds per square foot for a total of 33.6 pounds per square foot – less than the amount required by the the building code.
Quoting from the 2015 national building code, Justice Coughlan noted that falling snowflakes usually consist of very large complex ice crystals which accumulate in a loose and fluffy layer. But then the snow quickly turns into smaller, irregularly shaped grains, so the weight increases.
The weight of a foot of snow and ice on the roof at the time of the collapse would vary depending on the density of the snow and the amount of ice present, noted Justice Coughlan.
There was heavy rain the day the roof collapsed, which was over the warehouse portion. No one was injured. A witness came in and saw big chunks of ice all over the place with some snow on top.
Based on the evidence, Judge Coughlan there was about 12 inches of snow and ice on the roof at the time of the collapse. An engineer had visited three days after the collapse and observed two to two-and-a-half feet of snow and ice on the roof and among the collapsed pieces of the structure. But it continued to rain after the collapse.
The parties agreed with an expert witness who said the building was made between 1986 and 1996.
The numbered firm sued by Canpar was incorporated to own the real property of Tour Tech East Limited, a provider of audio and lighting equipment to the entertainment industry. Tour Tech bought the premises in 1991.
The landlord did not have a system in place to inspect for snow or ice on the roof.
One of the expert witnesses concluded the building did in fact meet the National Building Code requirements. That engineering expert attributed the roof collapse to snow load being well in excess of the design load.
But Justice Coughlan did not attach any weight to that report. Among other things, the court found that the expert was not assessing the Canpar premises, did not spend a lot of time looking at the structural members in the Canpar premises and did not measure the snow and ice.
The non-liability portion of the lease reads as follows:
The Tenant agrees that, save for cases of negligence or misconduct by the Landlord, the latter will not be liable or responsible in any way for any personal injury that may be sustained by the Tenant or any employee or agent or customer of the Tenant, or any other person who may be upon the Premises or on the Common Area or sidewalks, parking areas, highways, or loading areas adjacent thereto, or for any loss or damage or injury to, property belonging to or in the possession of the Tenant or any employee or agent or customer of the Tenant or any other person, and without limiting the generality of the foregoing, the Landlord will not be liable or responsible in any way for any injury, loss or damage to person or property caused by smoke, steam, water, ice, rain, snow, or fumes which may leak, issue or flow into through or from the Premises or from the water sprinkler, drainage or smoke pipes or plumbing equipment therein or from any other place or quarter or caused by or attributable to the condition or arrangement of any electrical or other wiring or the air-conditioning equipment or by reason of the interruption or stoppage of any public utility or service or, for any matter or thing of whatsoever nature or kind arising from the Tenant’s use and occupation of the Premises or otherwise.
Feature image via iStock.com/Sadeugra