March 22, 2018 by Greg Meckbach
Is your client looking after someone’s home? Be careful: a man describing himself as a “voluntary house-sitter” is now a defendant in a lawsuit arising from a flooded home.
The plaintiffs, Jiang Wei and Xiu Qing Hu, filed a lawsuit in British Columbia against the defendants, including Alcon Construction Co. Ltd.
The suit arose because the plaintiffs had water leak into their home in December 2013. The suspected cause was a frozen pipe.
B.C.’s Supreme Court Civil Rules allow a defendant to pursue a claim against a third party if the defendant feels it “is entitled to contribution or indemnity” from the third party in the lawsuit against the defendant.
In Wei v. Alcon Construction Co. Ltd., released March 16, Master Steven Wilson of the Supreme Court of B.C. ruled that Alcon Construction can file a third-party claim against Brian Zhang.
The allegations against Zhang have not been proven in court. Among other things, Alcon alleges that Zhang failed to “properly or regularly” monitor the property and failed to ensure that services such as heating were working properly.
The Supreme Court Civil Rules stipulate that a defendant can have a case thrown out of court if that defendant convinces the court that the lawsuit is “bound to lose.”
Zhang was unsuccessful in his application to have the lawsuit dismissed.
Zhang argued that he was a “volunteer housesitter” for the plaintiffs suing Alcon. Based on his premise that he was a volunteer housesitter, Zhang further argued that the court will not find that he owed the homeowners a duty of care. For its part, Alcon says Zhang owed the homeowners a duty of care “to regularly and adequately monitor and inspect” their property and to make sure the heating system was working.
Zhang cited the Court of Appeal for Ontario ruling, released in 2008, in Douglas v. Kinger (Litigation Guardian of).
In Douglas, cottage property owned by Bryce Douglas was destroyed by fire. Douglas was paid $285,000 on his fire insurance claim. The insurer filed a subrogated claim against Mitchell Kinger. In the summer of 2000, Kinger, 13 years old at the time, was employed by Douglas as a “boat boy.” For $8 an hour, his duties included lawn mowing. The fire happened while Kinger was trying to re-fuel Douglas’s lawnmower. Court records indicate that Kinger could not see how much gasoline was left in the can, so to get a better view, he brought a lit match to the mouth of the can.
The subrogated claim against young Kinger was dismissed in 2006, on the grounds that Kinger did not have a duty of care under the circumstances. That ruling was upheld by the Court of Appeal for Ontario.
In Wei v. Alcon Construction Co. Ltd, the “nature of the relationship” between the plaintiffs and Zhang “has not yet been established,” Master Wilson of the B.C. Supreme Court wrote.
“Whether that relationship was as volunteer, employee, or something else is undoubtedly a factor that the court will consider in terms of determining whether Mr. Zhang owed a duty of care and if so, the extent or scope of that duty,” Wilson added.