IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111115

Docket: S101250

Registry:
Vancouver

Between:

Karen
Shelton-Johnson

Plaintiff

And

The Board of
Education of School District No. 37 (Delta) and

Sons of Scotland
Benevolent Association

Defendants

And

Sons of Scotland
Benevolent Association and

Intact Insurance
Company

Third
Parties

Before:
The Honourable Mr. Justice Williamson

Reasons for Judgment

[1]            
On June 13, 2009, the defendant Sons of Scotland Benevolent Association
(“Sons of Scotland”) hosted Highland Games on the property of the South Delta
Secondary School in Tsawwassen.  During the course of that event, the plaintiff
alleges that she tripped upon an irregular projection of concrete on the
sidewalk adjacent to a door which provided direct access to the school’s
cafeteria.

[2]            
In a joint statement of facts, the parties agreed that the officer of
the Sons of Scotland who rented the premises from the defendant Board of
Education of School District No. 37 (Delta), (the “School Board”) knew that in
order to gain access to the interior areas of the school that had been rented,
volunteers, spectators and participants in the Games would have to make use of
the concrete walkway concerned.

[3]            
In this application, the School Board seeks an order that an indemnity
clause found in a document entitled “Terms and Conditions Governing Use of
School Facilities”, incorporated into the contact between the School Board and
the Sons of Scotland, applies with respect to this action.  The Sons of
Scotland say it does not.

[4]            
The disputed clause reads as follows:

The user agrees to accept the
premises at his own risk and to save harmless and keep indemnified the School
Board and its respective agents, officials, servants, employees and
representatives from and against all claims, actions, costs and expenses and
demands in respect to death, injury, loss or damage to any person, or property
of any person howsoever cause[d], who use[s] the School facilities as a result
of the user entering into this agreement, or who is permitted by the user to
use the School facilities, notwithstanding that same may have been contributed
to or occasioned by the negligence of the said School Board, its agents,
officials servants, employees and representatives.

[5]            
The School Board submits that as the claims in this action are based in
negligence, the indemnity clause applies because it states specifically that
the Sons of Scotland are to indemnify the School Board for injuries “occasioned
by the negligence of the said School Board”. Thus, the Board says, a plain
reading of this clause leads inexorably to the conclusion that it applies in
the present circumstances.

[6]            
The Sons of Scotland submit that the clause does not apply.  They say
that the indemnity refers only to those portions of the school which were
actually rented. They note that the contract was for the Sons of Scotland to
rent two specific rooms, a cafeteria and a classroom.  They concede that the
contract provided a license for the use of internal areas of the school
building including those incidental to the access to those areas, but say it
does not apply to external areas.

[7]            
The law in this area is not in dispute.  In Canada Steamship Lines
Ltd v. Regem, [1952] 2 D.L.R. 786, the Judicial Committee of the Privy
Council ruled that where a party to a contract has been negligent, and seeks to
make the innocent party liable for that negligence, the relevant indemnity
clause must be unequivocally certain. Canada Steamship Lines has been
considered and followed in many Canadian decisions.

[8]            
I have concluded that the School Board has failed to demonstrate that
the indemnity clause applies clearly to the sidewalk outside of the school.

[9]            
The indemnity clause which I have quoted above is in two parts. The
first part says that “the user agrees to accept the premises at his own risk”.

[10]        
That statement is followed by the disjunctive “and”, which is then followed
by the indemnity portion of the clause providing that the Sons of Scotland must
indemnify the School Board for any injury or damage to a person who uses the
school facilities as a result of the Sons of Scotland entering into the
contract to rent a portion of the school.

[11]        
Thus we have the word “premises” and the word “facilities”.  If the
sidewalk was a part of the “facilities” which had been rented, the indemnity
clause applies.  If it was not, the clause does not apply.

[12]        
The document entitled “Terms and Conditions Governing Use of School
Facilities” uses the expression “facilities” as well as the expression
“premises”. It says that all persons using part of the school property:

… are required to enter into a
rental/lease agreement for the use of any facility.  All activities must be
confined to the parts of the buildings stipulated in the contract.

[13]        
Paragraph 8 of the Terms states expressly that the user agrees to accept
“the premises at his own risk”.  But when it shifts to discuss the
indemnification of the School Board for any loss or damage, it speaks of loss
or damage to any person who “uses the School facilities” as a result of the
agreement.

[14]        
The word “facility” (or “facilities”) surfaces in two other relevant
documents. The first is the “School Use Form”, a form filled in by those who
wish to rent a portion of the school property.  In this case, it was completed
by an officer of the Sons of Scotland.  The document defines “facility” as
“cafeteria, washrooms & changing rooms & if possible room with stove to
heat meat pies”.  In other words, “facility” is limited to those areas.  Nothing
is said about sidewalks outside of the building.

[15]        
Further, the “Rental Contact” by which the School Board accepted the
offer of the Sons of Scotland to rent a portion of the school property defines
that property as follows:

Delta Continuing Education
hereby grants Sons of Scotland Highland Games (hereinafter called the
“Licensee”) represented by Elizabeth Johnston, permission to use the Facilities
as outlined, subject to the Terms and Conditions of this Agreement contained
herein and attached hereto all of which form part of this Agreement.

…

Facility                         Day      Start
Date

SD Cafeteria               Sat       13-Jun-09

SD
Classroom 1          Sat       13-Jun-09

[16]        
Again, there is no mention of any other areas of the premises being
included.

[17]        
The School Board has submitted that the Sons of Scotland are bound by
the indemnity clause for incidents on other areas of the school property because
they accepted responsibility for supervising parking, for preventing
unauthorized persons from entering the building, and for ensuring that the
school “premises” were left in the same order as they had been left by school
personnel.

[18]        
I am not persuaded by this submission.  These responsibilities concern
“premises”.  The indemnity clause shifts responsibility for negligence of the
School Board to the Sons of Scotland for incidents within the “School facilities”. 
For the reasons I have outlined, I do not find the sidewalk to be within the
facilities subject to the indemnity clause.

[19]        
I conclude, therefore, that the Sons of Scotland rented facilities which
were limited to a cafeteria, a classroom, and adjacent washrooms and changing
rooms. As such, the indemnity agreement does not state clearly that the Sons of
Scotland must indemnify the School Board for injuries resulting from the use of
a sidewalk outside of the school buildings.

[20]        
The application is dismissed.

“The Honourable
Mr. Justice Williamson”