Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Green v Khattab, 2018 ABQB 523 (CanLII)
Summary Judgment l JDR l Specific Performance of Settlement Agreement
Nelson v Grande Prairie (City), 2018 ABQB 537 (CanLII)
Summary Judgment l Municipality l Snow Removal | Gross Negligence
This was a successful summary judgment application for specific performance of a settlement agreement reached at a binding JDR. The Plaintiff wished to avoid the agreement and alleged:
a) Any agreement by her to make the outcome of the JDR binding was “effectively extorted” from her and “granted under duress” in circumstances where even the presence of counsel to advise her was “insufficient to overcome the disadvantages she laboured under.”
b) Her consent to be bound by the proceedings was withdrawn in a timely fashion and as soon as practicable in accordance with Rules 4.18 and 4.19 of the Alberta Rules of Court.
c) She was denied her right to participate meaningfully in the JDR process and in accordance with Rule 4.18(2) such that she felt bullied and threatened to accept an unjust resolution of the two actions. She says that “her evidence and positions regarding each said action was not heard or was misconstrued and that, overall, she was denied her right to properly and fully advance her claims and to properly and fully make answer and defence to the claims levied against her.”
The Court noted that the Plaintiff was represented by counsel at the JDR, and the terms of the agreement were put on the record and were clear. The length of time spent at the JDR was not an indication of any injustice, and as the parties reached an agreement rather than the JDR Justice rendering a binding decision, it is clear that the JDR Justice did not dictate the terms of the agreement. There was no persuasive evidence presented that the Plaintiff was vulnerable. Finally, the Court also found that there had been part performance of the settlement agreement.
This was an unsuccessful summary dismissal application by a municipality. The action arose from a slip and fall that occurred on a snow windrow that the Plaintiff was climbing over. The Master noted that statute imposed a standard of gross negligence for a municipality to be found liable for snow. A detailed discussion of gross negligence followed:
 Brooker, J, summed it up nicely in the Horizon Resource Management case. He said (though in a different context) at para 989:
 Blaze pleads further that Roll’n “with gross negligence, damaged the well”. Gross negligence has been defined as conduct lacking even that slight amount of care that even a careless person would take, and sometimes as involving “willful, wanton, or reckless misconduct”: Black’s Law Dictionary, 9th ed., sub verbo “gross negligence”, citing Prosser and Keeton on the Law of Torts §34, at 211-12 (W. Page Keeton ed., 5th ed. 1984). The notion of gross negligence was introduced into Canada by statutes (relating to driving, clearing of snow and ice by municipalities, and the provision of first aid) seeking to limit the liability of potential tortfeasors in these contexts to situations in which they were “grossly” negligent rather than just negligent: Fridman, Torts at 402. There is no universal agreement on the meaning of gross negligence, nor on whether gross negligence can be found in the absence of willful or wanton behaviour. It is clear, however, that to demonstrate gross negligence is a much higher bar than to show ordinary negligence. The courts have spoken of “very great negligence”, “such a degree of negligence as excludes the loosest degree of care”, and so forth. Perhaps the most-quoted definition in Canada comes from the motor vehicle context. In the decision of the Supreme Court in McCulloch v. Murray, 1942 CanLII 44 (SCC),  S.C.R. 141,  2 D.L.R. 179, Duff C.J., while declining to define gross negligence, said that it could be found where there is “a very marked departure from the standards by which responsible and competent people … habitually govern themselves”.
 The decided cases have not provided a bright-line definition of gross negligence. The one constant is that the decisions appear to be intuitive and they are highly fact-driven.
 For there to be gross negligence, the departure from an ordinary standard of care has to be great. Despite the suggestion in Black’s (above), proof of wilful, reckless, want or flagrant negligence is not a necessary condition for establishing gross negligence (Harper v Prescott (Town), 1940 CanLII 14 (SCC),  SCR 688 at 691), though it can be a sufficient condition.
 Knowledge of a potentially dangerous, or hazardous situation, can be a factor: Fletcher, (at paras 5-8), German v Ottawa (City), (1917) 1917 CanLII 618 (SCC), 56 SCR 80, Wolfe (at para 3) and Grabczewski (at para 21). Liability was found in both Fletcher and Wolfe: Fletcher for an icy sidewalk and Wolfe for an icy street. In Grabczewski, the City of Edmonton was found grossly negligent when it had failed to clear snow for two weeks.
 Knowledge of the conditions and the steps the municipality took (or did not take) in response may be a factor; (see McNulty at para 28). In Billings, the Ontario Superior Court of Justice found that it came down to the reasonableness of both policy and the response (para 7 per Herold, J). There is no evidence about whether the windrow could have been removed (or levelled), or whether sanding would have made a difference.
 The level of traffic at the place of the accident may be a factor: Pheasey, Bras, and Grabczewski. The failure of a municipality to implement its own policy has been as well: Bras, McNulty and Cerilli v Ottawa (City), 2008 ONCA 28 (CanLII).
 All of this is to be balanced against the reality of winter conditions in Canada. It is unreasonable to expect a municipality to keep sidewalks and roadways clear of snow and ice at all times during winter (eg Grusie, Durat, Metz).While a 1½” trip edge might constitute an extreme tripping hazard on a summer sidewalk (Shanks v Calgary (City) at para 23), it is doubtful that a similar ridge of snow or ice would be treated as an equivalent hazard in winter. As noted, the reasonableness of the policy and the response can be a defence (eg Harris, Durat and Billings). The policy/operational distinction also takes us back to root cases like Anns v Merton, Imperial Tobacco (at paras 87-90) and Keyland Development (para 171).
The Master also considered the standard for a Rule 7.3 application, whether the municipality’s defence needed to be found unassailable or merely probable, and included a discussion of the recent case law on this issue. Ultimately, the Court concluded that a finding of gross negligence involves a very fact based analysis, and in the current case, several facts were missing. As a result, the Master was reluctant to grant a summary dismissal application:
 Fortunately, I do not have to decide the application on this basis, or to determine whether the Defendant/Applicant has proved its defence on a balance of probabilities, whether I think that the city’s defence is unassailable, or whether it is ‘unassailable’ that the Defendant has, or will be able to prove its defence on a balance of probabilities, (or even whether any of the measures cited by Brown, J in Orr apply). The case does not turn on this point but rather on the gaps in the record. This is not to say that summary judgment could not be granted in this case, but like in Whissell, it is my opinion that summary dismissal should not be granted on this record.
 Regardless of the applicable test (or perhaps especially if the City of Grande Prairie is obliged to meet the higher standard) the gaps in the evidence and the uncertainty about the test for gross negligence convince me that this case is not a suitable candidate for summary dismissal. At least not on the factual record presently before the Court.