Munian v. Nova Scotia (Attorney General) 2025 NSSC 98
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By: Alexandre Doucet
This matter relates to an action for liability and damages under the Occupiers’ Liability Act, S.N.S. 1996, c. 27 for an incident that occurred in March 2014. The Plaintiff, a 55-year old man, decided to visit his sister-in-law’s home, a small family unit managed by the Cape Breton Regional Housing Authority. The Plaintiff had just entered the living room of the home when a large section of “soggy” gyprock fell from the ceiling and hit him in the head. The Plaintiff felt immediate pain in his head, neck, and back and decided to attend his local ER where he was diagnosed with soft tissue injuries.
The issue at trial was whether the Defendant was liable under the Occupiers’ Liability Act (the Act) for the Plaintiff’s injuries and, if so, how to quantify his damages?
The Act sets out specific negligence laws whereby an “occupier”, a person who is either in possession or has a responsibility for the premises, has a duty to those who enter their premises. (Note: New Brunswick does not have Occupiers’ Liability legislation and is instead governed by general negligence principles.) An occupiers’ duty concerns the condition of the premises, activities performed on the premises, and the conduct of people on the premises. Section 4(3) of the Act provides additional criteria for a Judge to consider, such as the knowledge the occupier has or ought to have regarding the likelihood of people or property being on the premises, circumstances of the entry into the premises, the effort made by the occupier to warn of the danger, and whether the risk is one where an occupier may reasonably be expected to offer some protection.
At the time of the incident, the property manager for Cape Breton Island Housing, Mr. Leslie, was responsible for approximately 360 units including individual apartments, single family units, and senior units. He was only informed of issues with the Defendant unit’s gyprock after the incident occurred and had received no prior indications from the tenant, Ms. Mackinnon, of any concerns.
The Plaintiff claimed that the Defendant was an occupier under the Act and alleged that the Defendant breached its statutory duty by failing to ensure that the Plaintiff was reasonably safe on the premises. The Defendant argues that the collapse of a wet ceiling does not, in itself, create a presumption of negligence, and that there was no evidence to show that the Defendant had failed to meet its standard of care.
Justice Russell, quoting Justice Bourgeois (as she was then) in Langille v. Bernier, 2010 NSSC 402 found that there was a consistent approach to occupiers’ liability (in other words, a set of rules):
- there is always a positive obligation upon occupiers to ensure that those who come onto their property are reasonably safe,
- the onus is on the Plaintiff to prove on a balance of probabilities that the defendant failed to meet the applicable standard,
- an occupier with a regular regime of inspection and maintenance will generally discharge the evidential burden not by the results of his efforts but by the efforts themselves, and
- an occupier is not a guarantor or insurer of the safety of those entering his premises.
In reviewing the evidence, Justice Russell found nothing to suggest that Mr. Leslie or anyone from his maintenance department inspected the premises, conducted maintenance or repairs, performed a single site visit while Ms. Mackinnon was a tenant (prior to the incident), or inquired about the state of the property. As such, Justice Russell stated that no proactive efforts by Mr. Leslie to maintain the property meant he failed to meet his standard of care as the property manager despite his very detailed system of policies, procedures, and protocols for maintaining the property.
