Union Estates Ltd. v. Kennedy et al., [1940] SCR 625

Supreme Court of Canada

United Estates Ltd. v. Kennedy et al., [1940] S.C.R. 625

Date: 1940-06-29

Union Estates Limited (Defendant) Appellant;

and

John A. Kennedy and Others (Plaintiffs) Respondents.

1940: April 29, 30; 1940: June: 29.

Present: Duff C.J. and Davis, Kerwin, Hudson and Taschereau J.J.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Negligence—Customers of recreation resort injured by collapse of bench, while attending concert—Concert not put on by proprietor of resort but with his permission—Liability of proprietor of resort—Relationship between customers and proprietor—Invitee, licensee with interest or bare licensee.

The respondents, while attending an open-air concert at an island summer resort and recreation grounds which were operated by the appellant for profit, were injured through the collapse of a wooden bench on which they were seated, the uprights of the bench having rotted. The concert was not provided by the appellant but by one S. with the permission of the appellant. A steamship company, a " sister" or subsidiary company of the appellant, which was transporting passengers to the resort, issued to the public an illustrated folder depicting and enlarging upon the attractions to be found on the grounds; and in it was a list of the recreations available and included in that list was a paragraph entitled " Open-air entertainment" with a detailed description of same. The area, known as the " Shell " area and comprised within the above No. 1 Picnic Grounds hereafter referred to, on which the concert was held, was free to the public and S's revenue was from collections which he took up from the audience. The appellant supplied the wooden benches and its employees placed them in position daily, but the appellant did not charge S. for the use of the stage or share in the collections, and S. was not an officer or employee of the appellant. The respondents were members of a picnic party composed mainly of employees of a company in Vancouver and were transported to the island by the steamship company. At their request, made some time previous to the latter, a small area known as No. 1 Picnic Grounds referred to in the folder had been set aside for their exclusive use as a common centre. No fee was charged the public for entrance to the resort: appellant's revenue was obtained from sale of food, hotel accommodation and boating, bathing and amusement facilities, although there was no evidence that respondents paid anything to the appellant for the use of such privileges. The trial judge held that the respondents were invitees of the appellant and awarded them damages; and that judgment was affirmed by a majority of the appellate court.

[Page 626]

Held, affirming the judgment of the Court of Appeal ([1940] 1 W.W.R. 209), that there was evidence to support the finding of the trial judge that in respect of the " Picnic Grounds No. 1 " the respondents were "invitees" and that the appellant, who was the owner in possession of that property, was responsible for the invitation; that there was also sufficient evidence to support his finding that the locus of the mishap in which the respondents were injured was within the locality to which the invitation extended; and, further, that that was sufficient evidence to support his finding, concurred in by the majority of the Court of Appeal, that the appellant failed in its duty to keep the bench reasonably safe for the purpose for which the respondents and other "invitees" were intended to use it.

APPEAL from the judgment of the Court of Appeal for British Columbia [1]affirming the judgment of the trial judge, Fisher J., and maintaining the respondents' action for damages.

The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.

C. H. Locke K.C. for the appellant.

H. R. Bray for the respondent.

The judgment of the Chief Justice and of Davis J. was delivered by

THE CHIEF JUSTICE—The appeal should in my opinion be dismissed with costs.

There is evidence to support the finding of the learned trial judge that in respect of "the picnic grounds no. 1 "the respondents were "invitees" and that the appellants, who were the owners in possession of that property, were responsible for the invitation. There was also sufficient evidence to support his finding that the locus of the mishap in which the respondents were injured was within the locality to which the invitation extended—" the picnic grounds no. 1."

The passage in the judgment of Lord Selbourne in Walker v. Midland Railway Co.[2] cited by Lord Buckmaster in Mersey Docks v. Procter[3] is, I think, apposite.

So far as pertinent it is in these words:

 **** the duty is limited to those places to which a person may reasonably be supposed to be likely to go in the belief, reasonably entertained, that he is invited *** to do so.

[Page 627]

The folder is evidence against the appellants as well as against the steamship company. In the examination of the manager of the appellants on discovery this occurs:

82. Q. I understand the whole thing is all your property? A. The whole thing is all our property.

83. Q. What was bothering me is you see your advertisement under the heading of recreation in this document marked 2, it says that the stage or whatever it is, or the shell, is on No. 1 ground. You don't quarrel with that at all? A. No, you can call it No. 1 ground.

There was sufficient evidence also in support of the finding that the appellants failed in their duty to "keep" the bench " reasonably safe " (Letang v. Ottawa Electric Railway Co.)[4] for the purposes for which the respondents and other " invitees " were intended to use it.

The judgment of Kerwin and Taschereau JJ. was delivered by

KERWIN J.—On July 3rd, 1938, Catherine L. Kennedy, Gladys McLeod and Sarah Brooks were injured by the collapse of a bench on which they were seated. They, and the husbands of the first two mentioned women, sued Union Estates Limited for damages for the injuries sustained and for the ensuing expenses. They succeeded before the trial judge, Mr. Justice Fisher, and, on appeal, the judgment was sustained by the Court of Appeal for British Columbia with two of the judges dissenting. By special leave of that Court, the defendant now appeals.

The accident occurred while the respondents, as members of a picnic party, were on that portion of Bowen Island, near Vancouver, in the province of British Columbia, owned and occupied by the appellant. It there operated a hotel, a cafeteria, a store, and provided facilities for picnics, boating, fishing, swimming, tennis, dancing, lawn bowling, and horseback riding. The usual rates were, of course, charged to anyone staying at the hotel and using certain of the recreational facilities but no charge was made for the use of the picnic grounds. The appellant also arranged for open air entertainments on a specially designed platform known as a concert shell but no fee was demanded from those who desired to listen to the programs, the entertainers relying upon voluntary donations for their recompense.

[Page 628]

Union Steamships Limited, not a party to this action, owned and operated a steamship plying, for hire, between Vancouver and Bowen Island. While that company and appellant are both subsidiaries of a third company, and while there is in evidence an agreement between the two whereby the shipping company agreed to pay the appellant, each year, such sum as should be mutually agreed upon by the directors and managers of each in respect of the use, by the shipping company and its passengers, of the appellant's wharves, terminal facilities, summer resorts and pleasure grounds at Bowen Island or elsewhere, the point is unimportant as undoubtedly the businesses of the two companies were operated jointly for their mutual advantage. While Mr. Rushton, to be referred to later, the traffic assistant of Union Steamships Limited, was not an officer or employee of the appellant, the latter's manager testified that Mr. Rushton "devotes a good deal of his time to Union Estates," and that the three companies "all work together." Even Mr. Rushton admitted that there was an arrangement between the appellant and the Steamship Company whereby the latter might allocate recreational facilities on the Island for such organizations as might desire them.

Under these circumstances, there can be no question as to the admissibility in evidence of an illustrated folder depicting and enlarging upon the attractions to be found on the Island, and this, notwithstanding the fact that it does not appear that any of the respondents ever saw the folder. In it is a list of the recreations available and included in that list appears the following:—

Open-air Entertainments—Frequent amusing shows, concerts and vaudeville entertainments are arranged in the evenings at the Bowen Island Concert Shell on no. 1 grounds. Other facilities include Children's swings, softball and outside checker—board.

Picnic Facilities—Plenty of hot water (free) and stoves are always available for large or small basket picnic parties and family groups, with covered tables under shade trees.

Five separate picnic grounds are available for reservation by organized parties, replete with modern equipment; running tracks for field sports, and splendid accommodation for softball and games.

Light refreshments, lunches, tea, coffee and sandwiches, etc., any time at the Pavilion Cafeteria. All meals are also available for visitors at Bowen Island Inn. Supplies of all kinds can be obtained at the artistic general store.

[Page 629]

In one corner of the folder it is stated:—

For information regarding all sailings, picnic reservations, accommodation at Bowen Island Inn and summer cottages.

enquire

Union Steamships Ltd., Vancouver, B.C., Union Pier, foot Carrall street, phone Trinity 1321, or City Office, 793 Granville street, phone Seymour 9331, or E. A. Vosper, Superintendent Union Estates Ltd., Bowen Island, B.C.

On April 14th, 1938, Ida Mary Scott, a stenographer and switchboard operator of the International Harvester Company of Canada, Limited, applied to Mr. Rushton to secure a picnic ground at the Island for the Harvester Company's picnic, to be held on July 3rd, 1938. In accordance with the arrangement between the Steamship Company and appellant, and without reference to any of the appellant's employees, Mr. Rushton designated for the purpose no. 1 Picnic Grounds, referred to in the folder, and notified the appellant's Island Superintendent of the allotment. Tickets for the return trip between Vancouver and the Island were issued by the Steamship company and were sent and charged to the Harvester company. On the day appointed the picnickers journeyed to the Island, among them being the respondents. I deem it irrelevant whether the latter were, or were not, employees of the Harvester company and whether each of the respondents paid for his or her ticket, although in fact it appears that one of them was such an employee and that another testified that she purchased her ticket. The ticket for each respondent was paid for by someone and there can, I think, be no doubt that no. 1 Picnic Grounds were reserved for all those who might attend the Harvester company's picnic, whether employees of that company or not. It need only be added that there is no evidence that respondents paid anything to the appellant by way of purchase of goods or for the use of any of the privileges of the Island.

The picnic was held, some of the picnickers returned to Vancouver on the Steamship company's boat about six o'clock in the evening and others remained on the Island until a later boat. Several people, including the respondents, sat upon one of the benches provided for the purpose by the appellant, to watch an entertainment on the concert shell. The fact that the entertainers neither received anything from, nor paid anything to, the appellant, but relied upon voluntary donations has no significance, nor

[Page 630]

is it important that the respondents, or some of them, contributed to the collection. They were seated for ten to twenty minutes when one end of the bench collapsed, causing the injuries complained of.

The principal contention before us was that the respondents were licensees and not, as found by the trial judge and the majority of the Court of Appeal, invitees, or, at least, licensees with an interest. Counsel for the appellant agreed that if the respondents had, for instance, gone into appellant's store to make a purchase, they would be invitees, but contended that they could not be so considered when on the picnic grounds for the use of which they paid no fee direct to the appellant. In my opinion that contention is unsound. The appellant was operating the resort as a commercial venture and the Steamship company must be taken as the agent of the appellant to invite (as that expression is used in the cases) the respondents to use the facilities provided on the Island. It is not necessary that there should be any contractual relationship between the appellant and respondents. It suffices that the respondents were upon premises owned and occupied by the appellant, on the business of the appellant, and with a common interest with it. It is true that in my view of the matter nothing was received by the appellant for the use of the picnic grounds but I agree with Mr. Justice M. A. Macdonald when he states:—

Whether patrons were attracted to tea rooms, the boat house, tennis courts, etc., or the " Concert Bowl," one common purpose was served, viz.: profit for appellant and advancement for its commercial interests. Attractions of a varied character in their combined effect would induce the public to visit the Island, repeat the visit and cause others to do so. A patron might promote appellant's interest, even though no money was spent by him except payment of his fare.

It was also contended that the accident did not happen on the picnic grounds. Upon a review of the evidence, I have concluded that that submission is not well-founded but, even assuming that it is, the appellant was interested in the picnickers remaining on the Island as long as possible in the hope that they would make purchases or use the facilities for which a fee was charged. The principle of Indermaur v. Danes[5] applies, and the terms of the invitation by appellant to respondents did not restrict the latter to the picnic grounds.

[Page 631]

The accident arose by reason of the fact that one of the tenons that mortised the leg to the seat of the bench had decayed and rotted. The trial judge in effect so found although it is suggested that he was influenced by certain evidence admitted by him in reply. Scott, the director of the entertainment, was a witness for the appellant and in cross-examination denied having made a statement that he had previously warned the appellant of the condition of the benches generally. The evidence called in reply that he had made such a statement was not admissible to show that any such warning was actually given. However, disregarding it, there remains ample evidence to justify the finding of the trial judge, concurred in as it was by the majority of the Court of Appeal. With this established, I think it is beyond question that while the appellant did not set a trap for the respondents, its employees made no proper inspection of the bench and such an inspection would have disclosed the decayed condition.

The appeal should be dismissed with costs.

HUDSON J.—The plaintiffs in these consolidated actions were injured through the collapse of a bench upon which they had been sitting. This bench was under the control and supervision of the defendants and on property owned and occupied by them. It was alleged that the bench was in an unsafe and dangerous condition, due to the negligence and default of the defendants, and further that being in such condition it was in the nature of a trap.

The action was tried before Mr. Justice Fisher, without a jury. He found as a fact that the bench when it collapsed was in an unsafe and dangerous condition and that the defendants were negligent and responsible for this. He further held that the plaintiffs were under the circumstances of the case invitees of the defendants. On appeal, verdicts in favour of the plaintiffs were sustained.

There was evidence to support the findings of fact of the learned trial judge and, affirmed as they have been by the Court of Appeal, I think there is no reason why those findings should be disturbed.

The real question to be considered is whether or not the plaintiffs were " invitees " of the defendants under the circumstances.

[Page 632]

The bench in question was on recreation grounds of the defendants on Bowen Island, about an hour's journey by sea from Vancouver. On this island the defendants had various attractions provided for visitors, including, according to advertisements, swimming, boating and fishing, tennis, lawn bowling, dancing, open air entertainments and picnic facilities as well as an inn and a cafeteria. It is quite apparent that these sources of recreation were not provided by the defendants out of philanthropic considerations. Doubtless they derived revenues from charges which were made to visitors for services rendered on the island. In addition to this, there were indirect considerations which entered into the matter. The entire stock of the defendant company called Union Steamships of British Columbia, Limited, and this company in turn owned the capital stock of another company called Union Steamships Limited which operated a line of steamships, some of which ran between Vancouver and Bowen Island. The Union Steamships Company and the defendants have the same executive, the same office, the same directors and the same shareholders. A folder was put in evidence advertising the attractions of Bowen Island and purporting to be issued by Union Steamships, making it quite obvious that Union Steamships Limited and the defendants were engaged in a common enterprise for the benefit of both.

The plaintiffs' visit to the island on the occasion in question was in consequence of arrangements made by a Miss Scott, who represented some of the plaintiffs among others. Miss Scott had interviews and correspondence with the Union Steamships Company with a view of arranging for a picnic to be held at Bowen Island and, as a consequence, she received a letter which read as follows:

Dear Miss Scott,

We wish to thank you for confirmation of the Annual Picnic of the International Harvester Company of Canada to be held at Bowen Island this year on Sunday, July 3rd, and take pleasure in advising we have duly reserved our No. 1 Grounds for your exclusive use.

As advised we will make a special net quotation as last year, namely, 80c for adults and 40c for children five years of age and under twelve (under five free).

A plentiful supply of hot water and all facilities will be immediately available on arrival and we would also mention that full course luncheons and dinners are served at Bowen Island Inn and light refreshments at the Pavilion Cafeteria for anyone desiring this service.

[Page 633]

Steamer will leave Union Pier at 10 a.m. and 2 p.m. and returning will leave Bowen Island at 6 and 9.15 p.m.

Regarding tickets, we will be glad to arrange a supply as last year, if you will kindly get in touch with us when convenient, nearer to the date.

Thanking you and wishing you a very enjoyable outing.

Yours very truly,

G. A. Rushton,

Traffic Assistant.

Following this letter, the plaintiffs and a considerable number of other people went to Bowen Island and were accommodated on picnic grounds no. 1. Towards evening of the day of the picnic they took their seats on the bench which collapsed. This bench was at a place called the " bowl," where open air entertainments were provided, and some question has been raised as to whether the place where these benches were formed part of picnic grounds no. 1 or not.

In the advertising circular of the Steamships Company it is stated:

Open-air entertainments—Frequent amusing shows, concerts and vaudeville entertainments are arranged in the evenings at the Bowen Island Concert Shell on No. 1 grounds.

The manager of the defendant company, when the question was raised, answered: "You can call it no. 1 ground." It is certain that the "bowl" was, if not actually on the picnic ground, immediately adjacent thereto and indistinguishable therefrom so far as the plaintiffs were concerned.

The fares of the plaintiffs were paid either by them or on their behalf. The business of conveying passengers to the Island and providing entertaining attractions for them there was really in the nature of a joint enterprise for the ultimate benefit of both companies. The evidence shows that nothing was paid by the plaintiffs for the actual use of the benches in question, and that the entertainment provided at the bowl was not given by the company, but the benches in question were under the supervision of the defendants, placed there and taken away from time to time by their employees.

The question then is whether or not these facts bring the case within the rule set up in Indermaur v. Dames[6]. Counsel for the defendants urged strongly that there was

[Page 634]

no common interest as between the defendants and the plaintiffs in respect of the use of this bench and that, for that reason, the defendants were under no liability. I am of the opinion that this contention cannot be sustained. As stated in Pollock on Torts, 14th Edition, page 410, it is not necessary that there should be any direct or apparent benefit to the occupier from the particular transaction, and here there were indirect benefits coming to the defendant company. I cannot distinguish between the situation of the defendants and a storekeeper whose customers may come into the store with the expectation of buying things and the storekeeper under the Indermaur v. Dames[7]rule is liable, whether or not the customer makes a purchase.

The defendants were looking forward to getting, and possibly did get, benefits from the presence of the plaintiffs on the Island, directly from money which they spent in respect of amusements there and, in any event, the Steamship Company was getting the money from the plaintiffs' fares and the defendants were providing the attractions which induced the plaintiffs to take the trip.

Reference might be made to Smith v. London & St. Katharine Docks [8]; Holmes v. North Eastern Railway [9].

The fact that the benches in question were owned and under the direct control and supervision of the defendants' employees distinguishes the case from that of Humphreys v. Dreamland [10].

I am of the opinion that the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellant: W. S. Lane.

Solicitor for the respondent: H. E. M. Bradshaw.