Trip and fall incident outside store occurred after a dog lunged at the plaintiff.
Stefanyk v Stevens, 2017 ABQB 402
This follows an appeal from a successful Summary Judgment Application in Master’s Chambers by the Defendant, Sobey’s. The matter arises out of a trip and fall incident on a sidewalk in front of the Sobey’s store after a dog lunged at the Plaintiff. The dog in question had been tied to something outside of the Sobey’s entrance. The Master granted the application on the basis Sobey’s did not owe a duty of care simply because customers needed to use the sidewalk for ingress and egress from the store. The Master also concluded amongst other things, even if a duty of care was owed, Sobey’s was not aware of the presence of the dog prior to the accident and no evidence some kind of inspection procedure would have alerted Sobey’s to the dog and no evidence it had the authority to tell the owner to remove the dog from the sidewalk. Sobey’s leased the internal space of the store – not the sidewalk.
The Court overturned the Master’s decision on the basis there was merit to the argument Sobey’s was an occupier of the sidewalk because it had control over who could enter and exit:
 In my view, the rationale that in order for the landlord to have possession and control of the premises it must have the power to permit and exclude people found in Kiceluk is persuasive. On the present facts, it was the tenant and not the landlord that had the power to admit and exclude patrons. While the Master attempted to distinguish the authority based on the particular provisions of the lease, in my view the Kiceluk case stands for a broader proposition of law and cannot be so easily displaced.
 In my opinion, the argument that Sobeys is the occupier under the Act has merit. The issue was then whether Sobey’s was responsible for the sidewalk even though it was adjacent property. The Judge concluded that there was merit to the argument that special circumstances existed to create a duty of care.
 In my view, there is merit to the argument that “special circumstances” exist to establish a common law duty of care on Sobeys. Patrons of Sobeys had almost exclusive use of the sidewalk and the activities of dog owning patrons of the store may flow onto the sidewalk and create a hazard. I find that the reasoning in Kluane applies.
 In my opinion, there is merit to the claim that Sobeys owes a duty of care to the Plaintiff.
The Court determined there was sufficient evidence to the argument Sobey’s could be liable both under common law and under the Occupiers’ Liability Act that a trial with viva voce evidence would be necessary. For a Summary Judgment Application to be successful, the evidence on the existing record has to be so compelling to establish the likelihood of success is so high the case can be dismissed summarily. If the evidence does not reach this threshold, the summary judgment application will not succeed. The dismissal of the appeal is not determinative of liability – the Court simply cannot summarily dismiss a claim without proper evidence.