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Monday Morning Case Bites for December 21, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

Ellis v City of Lethbridge, 2020 ABQB 783
Municipal Liability | Negligence | Occupier’s Liability

The Plaintiff was an attendee at an event held at a park operated by the City of Lethbridge, and suffered personal injuries when she stepped on an in-ground sprinkler head. At trial on liability before the Provincial Court, the Provincial Court held that the Defendant was negligent as an occupier of the park, and failed to take steps to ensure the premises were reasonably safe for the increased traffic at the event. However, the Provincial Court relied on s.530 of the Municipal Government Act (MGA), which provides immunity to a municipality and dismissed the claim:

Inspections and maintenance

530(1) A municipality is not liable for damage caused by

(a) a system of inspection, or the manner in which inspections are to be performed, or the frequency, infrequency or absence of inspections, and

(b) a system of maintenance or the manner in which maintenance is to be performed, or the frequency, infrequency or absence of maintenance.

On appeal, the Plaintiff cited s.527.2 and s.532 of the MGA as a basis for independent liability:

Acting in accordance with statutory authority

527.2   Subject to this and any other enactment, a municipality is not liable for damage caused by any thing done or not done by the municipality in accordance with the authority of this or any other enactment unless the cause of action is negligence or any other tort.s.

Repair of roads, public places and public works

532(1) Every road or other public place that is subject to the direction, control and management of the municipality, including all public works in, on or above the roads or public place put there by the municipality or by any other person with the permission of the municipality, must be kept in a reasonable state of repair by the municipality, having regard to

(a) the character of the road, public place or public work, and

(b) the area of the municipality in which it is located.

(2) The municipality is liable for damage caused by the municipality failing to perform its duty under subsection (1).

(3) This section does not apply to any road made or laid out by a private person or any work made or done on a road or place by a private person until the road or work is subject to the direction, control and management of the municipality.

(4) A municipality is not liable under this section unless the claimant has suffered by reason of the default of the municipality a particular loss or damage beyond what is suffered by the claimant in common with all other persons affected by the state of repair.

(5) A municipality is not liable under this section in respect of acts done or omitted to be done by persons exercising powers or authorities conferred on them by law, and over which the municipality has no control, if the municipality is not a party to those acts or omissions.

(6) A municipality is liable under this section only if the municipality knew or should have known of the state of repair.

(7) A municipality is not liable under this section if the municipality proves that it took reasonable steps to prevent the disrepair from arising.

(8) When a traffic control device has been defaced, removed or destroyed by someone other than a designated officer or employee or agent of the municipality, the municipality is liable under this section only if the municipality

(a) had actual notice of the defacement, removal or destruction, and

(b) failed to restore, repair or replace the traffic control device in a reasonable period of time.

(9) A person who brings an action under this section must notify the municipality of the event that gives rise to the action within 30 days after the occurrence of the event.

(10) Failure to notify the municipality bars the action unless

(a) there is a reasonable excuse for the lack of notice, and the municipality is not prejudiced by the lack of notice,

(b) death is the result of the event complained of, or

(c) the municipality waives in writing the requirement for notice.

As s.532 was not argued at trial, there was an issue as to whether the Trial Judge’s findings could support a new argument that s.532 applied on appeal. The Court of Queen’s Bench ultimately determined there was insufficient evidence to establish that a prudent municipal councillor would have knowledge of the state of repair, and this was not put before the trial judge:

[31]           Turning to s 532 MGA, the Appellant argues in her written submissions that the Trial Judge made several findings of fact which could be applied to establish the application of that provision: the potential to fall and suffer damage and loss at the venue was a “known risk”; the Respondent’s failure to make the area reasonably safe for individuals visiting in the unique circumstances of the event; and that the hazard could have been avoided if at minimum the sprinklers were clearly marked.

[32]           However, while Judge LeGrandeur considered whether the Respondent was negligent and whether the area was reasonably safe, s. 532 MGA instead asks if the “public place” under the “direction, control and management of the municipality” is “kept in a reasonable state of repair”. Because of this discrepancy, the Respondent argues that new evidence would have been required at trial to establish whether s 532 MGA applies.

[33]           It may be possible to infer that there is a sufficient factual record to meet the requirements to establish liability under s. 532 MGA.  However, I am convinced on a balance of probabilities that further evidence is required to decide this issue.

[34]           A complete factual record exists to establish some aspects of s. 532 MGA. I have no difficulty concluding that Henderson Lake Park was a public place under the direction, control and management of the municipality. At trial the Respondent conceded that the municipality was an occupier. According to the OLA an “occupier” is a “a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises”. Henderson Lake Park was under the “direction, control and management of the municipality.”

[35]            While the Respondent posits that the sprinklers do not amount to public works, Judge LeGrandeur considered the premises more broadly, considering Henderson Lake Park and the beer garden. While the hazard was created by the sinking sprinklers, it was as an occupier of the park itself that underlies liability.

[36]           The Court in Housen relied on Partridge v Langenburg (Rural Municipality)1929 CanLII 220 (Sask CA), [1929] 3 WWR 555 at 558-59 [Partridge] (see also Lemna v Calgary (City)2009 ABQB 478 at paras 54-55, which adopted this definition) to establish that the standard of care to maintain a “reasonable state of repair” means:

[T]hose requiring to use it may, exercising ordinary care, travel upon it with safety. What is a reasonable state of repair is a question of fact, depending on all the circumstances; “repair” is a relative term, and hence the facts in one case afford no fixed rule by which to determine another case where the facts are differed…

[Emphasis added]

[37]           It is unclear if further evidence  is required to establish whether the property was kept “in a reasonable state of repair.” While the Trial Judge identified a heightened need for inspection leading up to the Festival to account for the increased risk of injury, it is uncertain that this conclusion was reached by way of a review of the “character of the…public place or public work” and “the area of the municipality in which it is located”. Furthermore, this analysis depends on “all the circumstances”, indicating the expansive scope of evidence that may be required. Had these questions been before Judge LeGrandeur, more evidence may have affected the result.

[38]           Furthermore, no evidence has been tendered establishing how a person exercising ordinary care would conduct themselves (Housen at paras 39-40). While Judge LeGrandeur declined to find that the Appellant was contributorily negligent, more evidence would be required to resolve this question.

[39]           Even if it was found that there is a sufficient evidentiary record to establish all of the above, no evidence was put before Judge LeGrandeur regarding the knowledge requirements in s. 532(6) MGA: S 532 requires the Appellant to establish that the municipality had explicit or constructive knowledge of the state of repair. This knowledge is considered from the perspective of a “prudent municipal councillor” (Housen at para. 63).  While the trial judge held that the Respondent was aware that the sprinklers constituted a “known risk”, I am not convinced there is enough evidence to establish that a prudent municipal councillor would have knowledge of the state of repair. This question was not before Judge LeGrandeur.

The Court found that as s.532 was not raised at trial, the evidentiary record was insufficient to consider s.532 on appeal.

After analyzing the law and interpretation of s.530 of the MGA, the Court of Queen’s Bench determined that the trial judge made no error, that s.527 did not supersede s.530 of the MGA, and dismissed the appeal.