Friday, September 3, 2010

Employee's Conduct is Attributed to the Landlord

In a recent decision at the Ontario Superior Court, a condominium corporation was held vicariously liable for conduct of its employee, a security guard at a condominium which was managed by Del.  In the decision, JIA v. TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1479 2010 ONSC 3433, the Court found that the conduct of the security guard, a former police officer, and the use of force employed to deal with a person he considered a trespasser (the court did not feel the person was there unlawfully) was excessive. A link to the decisions here:

http://canlii.org/en/on/onsc/doc/2010/2010onsc3433/2010onsc3433.html" 

In a well-written decision, the Court ordered general, aggravated and pecuniary damages against the plaintiff. The total judgment against the defendant was $49,540.13. The Court did not find Del Property Management, also named in the action, was in any way responsible as the security guard was an employee of the condo corporation, not Del, so the Court removed Del from the claim. There are a couple of lessons to be learned. Landlords often feel that as owners and occupier they are permitted to remove persons from the property who have no lawful business being there, and as a general statement, that is correct. However, the Court in this case said (abridged):

The parties agree that it is permissible for a property owner to defend its personal and real property against trespassers by the use of reasonable force. There is also no disagreement with the principle that even a person, who has lawfully entered premises, commits a trespass if that person remains there after his right of entry has ceased. It is undisputed that, at least initially, Ms. Jia was permitted to be on the condominium premises and was not trespassing. She attended in the company of the owners of a condominium unit in the building who, according to Ms. Badu, were expected to attend that evening to obtain a status certificate for their unit, and then was allowed by Forest Vista’s authorized agent, Ms. Badu, to remain in the inner lobby. In the present case, I find that Ms. Jia was not trespassing. She had been given permission by Forest Vista’s authorized agent to remain in the lobby. As Mr. Keeley admitted, security guards would ordinarily ask trespassers to leave. Ms. Badu did not ask him to remove Ms. Jia or issue a trespass notice or ask Ms. Jia to leave because she was sitting quietly. Without reasonable explanation or justification, Mr. Keeley peremptorily revoked that licence.

In your rental buildings, there is a presumption in law that your tenants have a right to have others visit and remain for legitimate purposes, and only if a certain set of circumstances arise can this presumption be ignored and acted on.

Finally, the people who work for you as employees need training and judgment in order to keep you out of court. We sometimes see superintendents taking a paternalistic attitude towards your building, not altogether a bad thing. But they must be trained to contact a property manager before taking steps that could land your company in court.

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