Canadian Underwriter

How a property owner can be liable when a motorcycle hits a wayward donkey

July 2, 2020   by Greg Meckbach

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A Supreme Court of Canada decision released Thursday means a construction materials supplier is partly liable for injuries suffered by a motorcyclist who collided with a donkey that escaped from a rural property.

In 2009, Amir Youssef was riding his motorcycle along Highway 7 northeast of Toronto when he got into a collision that left him seriously disabled.

On behalf of Youssef, the Office of the Public Guardian and Trustee sued several parties, including Mark Burnfield and Redi-Mix Limited, tenant and owner respectively of the property from which several donkeys escaped.

In Youssef v. Redi-Mix Limited, released by the Ontario Superior Court of Justice in 2018, Justice Gregory Mulligan found Redi-Mix was partly liable as the property owner, despite the fact that Redi-Mix did not own the donkeys.

The tenant did not defend the action and is in default. The 100-acre property has since been expropriated to enable expansion of Highway 407.

Key to the ruling against Redi-Mix was Ontario regulation 517/06, which outlines maintenance standards under the province’s Residential Tenancies Act. Section 8 of that regulation reads: “Retaining walls, gardens and fences in exterior areas shall be maintained in a structurally sound condition and free from hazard.”

Justice Mulligan found Redi-Mix partly liable by summary judgement, ruling that a trial is needed to determine damages.

Redi-Mix was partly successful on appeal.

In Youssef v. Misselbrook, released this past February, the Court of Appeal for Ontario ruled that in addition to determining damages, a trial is also needed to determine whether the plaintiff is contributorily negligent.

But the appeal court upheld Justice Mulligan’s finding that it was negligent for the property owner to have failed to carry out regular inspections and notice that the gate immediately adjacent to a roadway was unlocked.

So Redi-Mix applied this past March for leave to appeal to the Supreme Court of Canada, which announced July 2 it will not hear an appeal.

Justice Mulligan’s original 2018 ruling denied a motion by Redi-Mix to have the case against Redi-Mix dismissed. There are several other defendants. In arguing the property owner is not liable, Redi-Mix contends it has no duty to monitor the activities of its tenant and that is met its obligations with respect to the fencing.

Redi-Mix further argued that the ordinary rules of negligence should not apply in this case to a company that does not own a domestic animal.

But Redi-Mix was unsuccessful in arguing that Justice Mulligan erred in setting the standard of care too high for a landlord not in possession of property.

During the legal proceedings, lawyers queried three officials of Redi-Mix. A company partner admitted there was no one assigned to do periodic inspections of the property to see that the gates were being properly locked and ensure they were suitable.

At about 3:00 a.m. on the day of the collision, a passerby found Youssef lying unconscious on Highway 7, as well as a dead or injured donkey and four other donkeys nearby. Youssef has very little recollection of the collision.

A police officer who investigated the accident made a deposition. That officer reported that at the nearby property,  a fence with a metal gate had no lock. The officer was able to pry the gate apart so the donkeys could get back on to the property.

Justice Mulligan found that one or more donkeys was able to pry the gate apart and this is how the donkeys escaped.

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