Go to Top

Monday Morning Case Bites for June 18, 2018

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

Edited by Amanda Kostek & Christie Dewar

Hache v West Edmonton Mall Property Inc, 2018 ABQB 461
Summary Judgment l Risk not foreseeable l Voluntary assumption of risk

1406998 Alberta Ltd. v. Dorbandt, 2018 ABCA 213
Dismissal for long Delay l JDR


Judgment Highlights

 

Hache v West Edmonton Mall Property Inc, 2018 ABQB 461

This was a Summary Judgment application brought by West Edmonton Mall. The Plaintiff leaped over a waist high wall ¾ of the way down a parking lot ramp and fell 18 feet below. The Court concluded that the risk was not foreseeable on the following basis:

[29] The photos and the video show that although you can walk on these surfaces (they are concrete), they are not as wide as a sidewalk and they are clearly sloped in a way that does not invite pedestrian traffic. The median between the ramps looks like a median you would find on any busy roadway – it divides traffic but its mere existence is not an invitation to walk on it.

[30] Since at least 1995, there has not been a single incident involving a pedestrian on vehicle ramps at the Mall relating to a pedestrian jumping over, falling over, slipping over or in any way involving a pedestrian leaving the vehicle ramp surface and going over the wall of the vehicle ramp on to the surface below other than the incident involving Mr. Hache (see Corbett Affidavit, at para 3). There is no evidence on the record to contradict these assertions by the Mall, primarily because Mr. Hache neither questioned the Mall’s witnesses on this issue nor filed an affidavit in response. In a summary judgment application, parties must put their best foot forward.

[31] In the circumstances of the present appeal, and from an objective perspective, the risk of a pedestrian jumping and falling off an entry ramp intended for sole use by vehicles – which does not include a pedestrian walkway – was not reasonably foreseeable by the occupier [i.e. the Mall], prior to the incident involving Mr. Hache. In other words, the Mall in this case could not have reasonably foreseen a risk to visitors who exercise ordinary diligence in the use of the entry ramp; as such, the Mall was not negligent.

The Court noted that even if the fall were foreseeable, there was no obligation on the part of the mall to upgrade their parking ramps to meet the Code:

[35] Mr. Renneberg’s report states that the heights of the walls do not currently comply with the Code and did not comply with the Code at the time of the accident: Renneberg Report, at 7. However, even if the wall heights did not comply with the current Code, that does not mean the Mall breached a duty. There is no evidence to support a finding that in order for the Mall to meet the requisite standard of care, it was required to upgrade the concrete walls to comply with the current requirements of the Code. Neither can the conclusion be drawn that the occupier created an unsafe premises because the ramp had not been upgraded to the present Code’s stipulations.

Ultimately, the Court concluded that the risk was obvious, such that there was no duty to warn:

[37] Where a danger is so obvious and apparent that anyone would be aware of it, there is no duty to warn:McQueen v Alberta, 2001 ABQB 220 (CanLII) at para 62, 285 AR 290 (WL), aff’d 2002 ABCA 31 (CanLII). An argument that the Mall should have foreseen the accident and that, therefore, warning signs should have been put in place to prevent this type of fall is beyond the duty of care that is required in the circumstances of this case. It should be obvious and apparent to anyone that walking on a vehicle ramp where cars go streaming by (Mr. Hache had to wait for several) is dangerous; and warning signs are not required to make the hazards apparent.

Finally, the Plaintiff’s actions were reckless, and he willingly accepted the risk inherent in his actions:

[41] Mr. Hache’s decision to take a running jump over the cement barrier can be appropriately characterized as one that meets the high standard of voluntariness on the part of the visitor, prescribed in Waldick. Mr. Hache walked right past the mirror image of the ramp (including the parking lot wall, the 6-foot gap and the ramp wall) before making his decision to walk down the ramp and leap over the wall without looking. Even if this Court accepts that the “parkade ramps are regularly used by pedestrians to gain access to the street,” purposively jumping over the ramp’s concrete wall is hardly the conventional way for using the ramp.

[42] Here, based on the physical location of the vehicle ramp and its concrete wall that were not “hidden” dangers, it seems Mr. Hache acted and made a poor decision, with full knowledge of the danger inherent in his decision to use the ramp in an unconventional manner. That decision can only translate to one thing: Mr. Hache willingly accepted the risk inherent in his jump.

West Edmonton Mall’s summary judgment application was unsuccessful at the master level. On appeal, the decision was reversed. The summary judgment application was successful and the Plaintiff’s claim was dismissed.


 

1406998 Alberta Ltd v Dorbandt, 2018 ABCA 213

On appeal the Court of Appeal concluded that participation in a JDR was a thing that materially advanced the action notwithstanding that the claim did not resolve on the following basis:

[1] The appellants appeal a decision of the chambers judge allowing an appeal from the Master dismissing the action for long delay under r. 4.33. The parties participated in a full-day JDR on October 17, 2013, following which a formal settlement offer was served. The appellants’ application to have the claim dismissed on the basis of delay was filed May 26, 2016.

[2] We agree with both the Master and the chambers judge that the parties’ participation in the JDR constituted a significant advance in the lawsuit. An affidavit filed on behalf of the respondent asserted that “the JDR advanced the matter and narrowed the issues for trial”. The parties filed briefs on the JDR, and devoted sufficient time to ensure the JDR process was effective. The settlement offer is strong evidence that the time committed to the process was valuable. As the parties properly accepted before the chambers judge, service of the application to dismiss for delay occurred less than three years from the date of the JDR.

As service of the application occurred less than three years from the date of the JDR, the application to dismiss due to long delay was unsuccessful.