A man honoured by the Burnaby Fire Department in 2012 for pulling an elderly neighbour from a burning apartment has run out of time to sue the owner and managers of the building for negligence because he listened to a provincial court judge’s decision instead of appealing it.
Remigiusz Janus, a former Polish firefighter, waded through thick black smoke on April 16, 2012 to pull his neighbour, Iliya Mochev, from his burning fourth-floor apartment at the Kingsway Court seniors' residence at 5560 Inman Ave.
Mochev had been cooking when he took a fall and couldn't get up, according to news reports at the time.
The pot on the stove continued cooking, eventually sparking a fire in the small apartment.
Instead of getting out of the building, Janus plunged into the smoke-filled apartment to get Mochev.
The fire department honoured Janus with a certificate for his heroics.
Janus, representing himself, then tried to sue the burned apartment building’s management company – FirstService Residential BC Ltd. – in B.C. Provincial Court (small claims) in 2014, claiming the firm had been negligent for its lack of fire safety and was responsible for smoke-related injuries and the loss of personal property.
A judge dismissed the case, however, saying the dispute fell under the jurisdiction of the Residential Tenancy Branch.
So Janus launched a Residential Tenancy Branch claim in 2015 against both the management company and the owner of the building, Central Park Citizen Society.
But that case was dismissed because – by that time – the two-year time limit for filing the claim had elapsed.
Cancer diagnosis
Janus launched a new suit in B.C. Supreme Court after being diagnosed with cancer in September 2015.
He alleged the negligence of the owner and managers led to him being exposed to harmful smoke and asbestos dust, as well as to him losing personal belongings and being rendered homeless for a year.
He sought damages for past and future income loss and future care costs.
The owner and managers applied to have the case dismissed, arguing, in part, that the suit had been filed too late since it fell under the Residential Tenancy Act, which has a two-year time limit.
B.C. Supreme Court Justice Diane MacDonald disagreed, saying Janus’ claim didn’t fall under the Residential Tenancy Act because his cancer diagnosis would likely end in a bigger claim than the $35,000 RTA limit.
She concluded the case should be heard on its merits.
'Without a remedy'
Before that could happen, though, the owner and managers appealed to the B.C. Court of Appeal, and MacDonald’s decision was overturned.
The court agreed that the two-year RTA time limit didn’t apply but said MacDonald had erred in concluding the clock didn’t start ticking on Janus’ claim until after his cancer diagnosis.
The court concluded the limitation period had started with his initial small claims case in B.C. Provincial Court and that he should have appealed that judge’s ruling instead of listening to the judge and taking his claim to the RTB.
“Ultimately, Mr. Janus is left without a remedy because he failed to appeal the decision of the Provincial Court dismissing his claim,” stated a B.C. Court of Appeal ruling written by Justice Lauri Ann Fenlon. “This result will no doubt seem unfair to Mr. Janus, especially as he started his claim within time only to be told by the Provincial Court that he was in the wrong forum. It will be little comfort to Mr. Janus to be told now that he should have appealed that decision.”
Fenlon said time limits may seem harsh but they “uphold other significant values – finality and the expeditious resolution of disputes – that are of importance to the justice system more broadly.”
