Taylor v. People's Loan & Savings Corp.

J.-On the night of 22nd January, 1927, a building of four storeys, belonging to the defendant company, situate on Richmond street, London, Ontario, was destroyed, or seriously damaged, by fire.

Parts of the building had been leased, and were in the possession of tenants. Among others, the space on the fourth floor, described as " the top flat of the building known as No. 426 Richmond street," was, by indenture of 1st April, 1923, in form and as thereby expressed, leased by the defendant company to " Court Eclipse, No. 1036, Canadian Order of Foresters of the said city of London," a fraternal, unincorporated society.

The lease was by indenture in duplicate, in pursuance of the Act Respecting Short Forms of Leases; it was executed, on behalf of the defendant company, by its President and Secretary-Treasurer, who affixed the company's corporate seal; and, on behalf of the Court Eclipse, by the Chief and Financial Secretary of the Court, who attached a seal. The lease was to run for one year from its date, and there is a memorandum endorsed of 26th April, 1924, extending the term for one year from the first of that month. It would appear that the society continued to occupy the premises described down to the time of the fire, although there is no further written extension in evidence.

On the night of the fire, the members of the Court, or CP society, were entertaining themselves and their friends at social assembly held in the flat, and the plaintiff, who had joined the society subsequently to the lease, was present. The party was broken up by the fire, which started on one of the lower floors while the festivities were in progress, and, most unfortunately, had, before it was discovered, gathered such headway that egress by the stairway was cut off for several of the members and their guests, including the plaintiff.

The building was not provided with fire escapes, and so it was necessary for these unfortunate people to jump from the windows, in order to save themselves.

The plaintiff, who raised an alarm, and remained at a window until the firemen arrived, landed in one of the nets, and his hands proved to be so severely burned as permanently to destroy their usefulness. He claimed $15,000 damages, and that amount was found at the trial, and not questioned before us. The Appellate Division (1) reversed the trial judge, holding that there was no liability, and from that judgment the plaintiff appeals.

The learned trial judge (2) was of opinion that the defendant company was liable both at common law and by the legislation of Ontario. He held that, although there was no contract between the parties, the plaintiff was not a trespasser nor a mere licensee, but, in the language of the judgment, that he was

I do not, however, find any material with which to construct an invitation by the defendant; its obligation cannot, in my view, be any higher, or more extensive, than that of lessor under the lease of 1st April, 1923; and, to assume the most advantageous position for the plaintiff, if he and the defendant stand in the relation of tenant and landlord under that instrument, they are governed by the law as stated in Lane v. Cox (1); Cavalier v. Pope (2); Fairman v. Perpetual Investment Building Society (3); Scythes & Company Limited v. Gibson's Limited (4). The landlord does not, in the absence of a provision to that effect, become liable to the tenant for defective construetion or maintenance of the leased premises, or for damages resulting from any such cause.

There is a municipal by-law of the City of London, no. 5430, of 4th December, 1916, as amended, requiring, by clause 40, " the owner, lessee or agent of every building (except private dwellings) three storeys or more in height," to provide fire escapes within one month after notice by the Inspector of Buildings; but in this case there was no notice, and so the clause does not apply, whatever its effect might otherwise have been. For the like reason the provisions of clause 10 of the by-law do not apply; that clause requiring the owner or his agent, of a building which, in the opinion of the Inspector, is in a dangerous condition, to proceed at once, upon notice in writing of the Inspector, to make the building safe.

The judge expresses his view with regard to the legislation as follows:

But I do not think that this is an admissible interpretation. There is no common law liability; and as to the by-law, to mention one reason only, the requisite of notice was not satisfied.

Chapter 229, R.S.O., 1914, An Act for the Protection of Persons Employed in Factories, Shops and Office Buildings, is also invoked on the plaintiff's behalf, and the trial judge considered that the plaintiff, as an invitee of the owner, was entitled to the benefit of s. 59, subs. 3, which provides that