In Hansma v. Atira Property Management Inc., 2024 BCSC 2023, the proposed class action proceeding concerned a fire at Winters Hotel. The hotel provided long-term single occupancy to certain tenants at the time, providing affordable housing to people in need. Two residents died and more than 70 individuals were displaced and lost personal property.
The defendants included the corporation that owned the hotel, Atira Societies, and the company that leased the hotel, provided property management services and operated a portfolio of properties, along with Vancouver Fire and Rescue Services (VFRS) and BC Housing, which provided funding to Atira.
The defendants mostly consented to the certification for the negligence and occupier’s liability claims but opposed the breach of trust claim. The plaintiff was granted an adjournment to provide further clarity for the claim, “including the type of trust alleged, and its objects, subjects and intents.”
On April 8, 2022, a fire occurred in a unit of the hotel, the sprinkler system was activated, and the fire was extinguished. The plaintiff alleged the fire alarm did not sound during this time. Vancouver Fire and Rescue Services deactivated the sprinkler system after the fire.
VFRS was said to have issued a notice of violation “directing the recipients to have the fire alarm and sprinkler systems serviced and restored, and requiring them to maintain a 24-hour fire watch on the premises until the fire alarm was reset and fully functional.” The plaintiff said that the defendants did not comply.
On April 11, 2022, the fire in question broke out. The plaintiff, who lived in the hotel, said the fire alarm did not sound, and the sprinkler system was nonoperational. There were attempts to use fire extinguishers but many of them had been used in the previous fire. The building, first built in 1904, sustained significant damage and was demolished days later.
The parties agreed that many certification requirements were met in relation to fire-related personal injury and property loss claims. The court agreed that the pleadings disclosed a cause of action for personal injury and property damage claims framed in negligence and occupier’s liability.
The residents of the unit where the April 11 fire started were excluded from the class. However, the defendants submitted that the residents of the unit where the April 8 fire started should also be excluded from the class for contributory negligence.
Justice Francesca Marzari said that “it would be beyond the scope of the common issues trial to make findings as to the cause of the April 8 Fire itself,” including whether it was caused by negligence on the part of the residents who lived there and whether that contributed to the April 11 fire.
Those residents had “compelling access to justice reasons to be included in the class in relation to their losses” from the April 11 fire. Those reasons were “sufficiently in common with the rest of the class to warrant their inclusion on that basis, even if their ultimate recovery may be diminished if they are found to be contributorily negligent.”
Further, contributory negligence would likely be an issue at the individual issues stage, the court said, regardless of whether those residents are included in the class. Further, including those residents would not sever joint and several liabilities for the rest of the class.
“The proposed class members largely represent a segment of society with minimal social or economic power, and intersecting barriers which may otherwise impede their ability to access justice,” wrote Justice Marzari.
“In addition to the cost barriers inherent in bringing individual actions, the Supreme Court of Canada has also recognized the role of class proceedings in increasing access to justice where psychological or social barriers exist.”
The certification application was granted, except for the breach of trust claim, certifying 34 common issues.
Counsel for the plaintiff were Jamie Thornback, Rebecca Coad and Briana Leibel of CFM Lawyers LLP.
Counsel for Atira Property Management Inc. was Karen Weslowski of Miller Thomson LLP.
Counsel for Atira Development Society and Atira Women’s Resource Society were Patrick Bruce and Megan Wong of Alexander Holburn Beaudin + Lang LLP.
Counsel for Vancouver Fire and Rescue Services were Iain Dixon and Joelle Michaud.
Counsel for Winters Residence Ltd was Esraa Yacout of Richards Buell Sutton LLP.
Counsel for B.C. Housing were Scott MacKenzie and Frederik Troen of Boughton Law Corporation.
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