What is the test for permissive waste in the context of fire protection legislation?

Saskatchewan, Canada


The following excerpt is from Cherry v. Smith, 1933 CanLII 257 (SK QB):

In Wolfe v. McGuire (1896) 28 O.R. 45, it is stated at p. 49 that: “An accidental fire, without negligence, is permissive, not voluntary waste.” While the facts in that particular instance may have supported a finding of permissive waste it appears to me that the principle is not correctly stated, because, if a fire is purely accidental, it is not waste at all, in the legal sense of the term. Thus a fire might spread from an adjoining building to the demised premises without any fault of the lessee. It could hardly be contended in such case •that the destruction of the demised premises was an act of permissive waste on the part of the tenant. On the other hand, if the spreading of the fire was due to the failure of the lessee to repair, or possibly to close a fire door between the two buildings, which door was under his control, then it might very well be construed as an act of permissive waste, since the spreading of the fire would in such a case be attributable to his omission to perform an act for the preservation of the property which he ought to have performed.

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