The BC Court of Appeal has determined that a strata corporation in Victoria and its property manager did not owe fiduciary duties to put up a railing on the patio deck of an owner whose patio lacked a railing.  One of our partners, Neil Carfra, conducted the defence of the matter.

As the court noted in its unanimous reasons issued December 29, 2008, “On 4 August 1998, the plaintiff/appellant Rose Petersen fell over a 26-inch wall at the edge of the patio outside her condominium, dropping 13 feet into a concrete stairwell and suffering serious injuries.”

Acting without a lawyer, the plaintiff missed the two-year limitation period for commencing action for personal injuries in tort, contract and statutory duty, but in 2005 a Supreme Court judge permitted her to amend her pleadings to plead breach of fiduciary duty, which carries with it a six-year limitation period.

In the summer of 2007, a BC Supreme Court justice agreed with Mr. Carfra that the defendants owed the plaintiff no fiduciary duty to put up the railing, even though they had agreed to do so but did not get the job done before the plaintiff fell.  The plaintiff appealed.

In concluding that no fiduciary duty existed in this instance, the Court of Appeal wrote, “The claim for breach of fiduciary duty attempts to overcome the limitation period that now bars her common law action.”  The court continued:

… there was no element of unconscionability toward Ms. Petersen that elevates her claims beyond the boundaries of contract and tort.  It follows that the relationship between Ms. Petersen and the respondents did not satisfy the fiduciary elements outlined in Frame v. Smith.  Ms. Petersen was not vulnerable to any discretion or power assumed by the respondents to exercise selflessly on her behalf related to the wall and railing.  The relationship was entirely defined by common law obligations and those duties are time limited by the statutory limitation periods.  While I sympathize with Ms. Petersen’s plight, I do not think that we can create a fiduciary relationship where one does not otherwise exist simply to defeat a limitation defence.

The decision can be read at this link:  Petersen v. Proline Management Ltd, 2008 BCCA 541.