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Monday Morning Case Bites for November 18, 2019

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

Edited by Amanda Kostek & Christie Dewar

Goodvin v Penson, 2019 ABQB 867
Parental Liability | Adult child | Drinking and Driving

Barz v Driving Force Inc, 2019 ABQB 866
Workers’ Compensation Act | Vehicle Owner | Several Liability

Ellis v Lethbridge (City), 2019 ABPC 276
Slip and Fall | Municipality | Occupiers’ Liability Act | Sprinkler Hole

Goodvin v Penson, 2019 ABQB 867

This was a successful application for summary dismissal by the parents of an adult son. The issue was parental liability for the negligence of an adult son who chose to drink and drive on private property, and collided with an intoxicated visitor to the property who was driving an ATV:

[2]               The Penson’s own a 10 acre property at Grovedale, Alberta. Russell and Shelley Penson are Cole Penson’s parents. Russell and Shelley left for Calgary on the morning of April 29, 2016. That night, Cole had a party at the acreage. Cole was driving his father’s truck on the property. Devon Goodvin was driving an ATV. The two collided. Devon was seriously injured. Cole was 21. Devon was 22. Both had been drinking.

[3]               Cole is sued in negligence and in occupier’s liability. Russell and Shelley Penson are sued in negligence; primarily for failing to keep Cole in check. This is their application to exit the lawsuit – at least for those matters above and beyond Cole’s use or operation of Russell’s truck.

[4]               The specific allegations relating to the parents have to do with permitting the social event to occur, at which alcohol was likely to be consumed and injury could result. It is also alleged that the parents were negligent for failing to supervise the social event. It is said that they should have told Cole not to drive drunk, have taken away the keys to the truck, supervised the party, or put restrictions on the party-goers.

The Court directed that the starting point is that parents are not vicariously liable for the negligence of their children:

[5]               The starting point is that parents are not vicariously liable for the acts or omissions of their adult children: Taylor, para 44; Segstro, para 70; Lafarge, para 12; G(J), para 168; Kim, paras 28-30; Ferrier, para 63; and Childs, para 44.

[6]               The liability of a parent is not vicarious – certainly not for ‘adult children’ who are legally autonomous. The action has to engage the parents as parties in their own right. Establishing things such as proximity and duty are mandatory.

[7]               It is an uphill battle. There are strong policy reasons against finding parents liable as a matter of course. Adulthood is a reason in itself for negativing or limiting a duty. Essentially, what must be shown is a known risk, a propensity, perhaps a modus operandi, or a similar fact that would bring home the risk to the parents. Perhaps the closest analogy is that of an occupier for the existence of a dangerous condition on their property. This is not a novel ground of liability. The law is long established. Cases engaging a parent’s liability are highly fact-driven.

The Court outlined examples of when parents might be held liable:

[8]               The types of circumstances that might suffice can be (for example):

  1.    a material implication in the creation of a risk to which others have been invited (Childs, para 38);
  2.    reasonable reliance that reasonable precautions have been taken to reduce the risks of a (dangerous) activity (Childs, para 40);
  3.    breach of a duty to supervise or control (Lafarge, para 12);
  4.    generally, falling short of the standard expected of parents in a community (Taylor, para 45 and Segstro, para 70).

However, simply being aware of a party involving alcohol is not sufficient to establish liability:

[9]               It is not enough, for example, for the parents to have been aware of a private party where alcohol was served (Childs, para 44).

The claim was dismissed against the parents on the following basis:

[12]           The Plaintiff/Respondent tendered an affidavit from Dayton Jobson suggesting that Mr. Jobson was well aware of Cole Penson’s propensity to drink and drive. However, there is little or no evidence of any particular risk that might have engaged the parents’ responsibility. Certainly, Russell Penson did not admit to any concerns at his Questioning; though I acknowledge that this evidence is primarily self-serving. It appears that the only knowledge the Penson’s had of a social gathering that evening arose from a text that Cole had sent to his mother that he ‘might have people over for cards or something’.

[13]           Adult children are permitted to drink and to drive (though not at the same time). This is part of the responsibility that goes with turning 16 and getting a driver’s license, or reaching the age of majority. It is not an inherent requirement on the part of a parent to supervise or control these activities. A parent has to have knowledge of a risk and breach the applicable standard of care in (not) trying to prevent it (e.g. Fullowka, para 17). In this case, the parents had nothing to do with creating the risk, controlling the risk, failing to set, or enforce rules, or anticipating a hazard they knew or ought to have known about.

[14]           The law is well settled. I acknowledge there would be no real judicial economy in letting the parents out at this stage because the father will have to testify about the truck anyway. But that is not the threshold. There are no compelling facts in evidence that would engage the parents as parties. The point in this case is not novel.

Barz v Driving Force Inc, 2019 ABQB 866

This was a successful summary dismissal application by the owner of a vehicle involved in a single vehicle accident. The case involved the interplay between section 23 of the Workers’ Compensation Act, which removes causes of actions between employees in the course and scope of their employment, and Section 187 of the Traffic Safety Act, which deems the operator of a vehicle to be an employee of the vehicle owner, driving in the course and scope of employment. The facts are set out as follows:

[2]               Driving Force rented a truck to Magna Electric Corporation. Jeffery Drake, a Magna employee, was driving it. The Plaintiff, Jazon Barz, also a Magna employee, was his passenger. Jeffery drove the truck into the ditch. Jason was injured.

[3]               Jason, Magna and Jeffrey are all covered by WCB benefits. Section 23 of the Workers’ Compensation Act removes any causes of action they might have against each other.

[4]               This action, presumably subrogated, is against Driving Force, as owner, under s 187 of the Traffic Safety Act (which, perhaps ironically, deems the person driving with the owner’s consent to be their employee, driving the motor vehicle in the course of that person’s employment). Driving Force is not protected from its vicarious liability under the Traffic Safety Act by the bar to suit in the Workers’ Compensation Act.

The Court dismissed the action on the basis that there was no several liability on the part of the Driving Force.  The Court relied on the following italicized portions of section 23 of the Workers’ Compensation Act:

23(2)  In an action to which section 22 applies, a defendant may not bring third party or other proceedings against any employer or worker whom the plaintiff may not, by reason of this section bring an action against, but if the court is of the opinion that that employer or worker, by that employer’s or worker’s fault or negligence, contributed to the damage or loss of the plaintiff, it shall hold the defendant liable only for that portion of the damage or loss occasioned by the defendant’s own fault or negligence.  [emphasis added]

Ellis v Lethbridge (City), 2019 ABPC 276

This was a trial on the issue of liability, in which the Plaintiff was unsuccessful against the municipality. The Plaintiff stepped into a sprinkler hole and broke her foot while attending the Dragon Boat Festival in Lethbridge. She sought damages under the Occupiers’ Liability Act. The Court accepted that the City knew the sprinkler holes posed a hazard:

[24]           In this case the City, through its workers and supervisors, knew that sprinkler heads in Henderson Lake Park, and indeed elsewhere in the city, could in the course of their operation over time sink below the level of the walking surface and become a hazard.  The circumstance of a sprinkler head being below the walking surface of the subject premises within a hole the diameter of which was greater than the diameter of the sprinkler head itself, such that an individual who unwittingly stepped in the same, could sustain injury was a known risk.  In this case such a sprinkler head hole existed and was partially hidden by grass that had grown and laid to some extent over the sprinkler head and the hole surrounding it.

[25]           The City recognized that given the volume of traffic in the discrete area allocated to the Dragon Boat Festival for its use, and also the even more discrete area allocated for the Beer Garden (Special City Permit Exhibit #9), that the risk of a sprinkler hazard causing injury was higher than in normal circumstances where there was less confined pedestrian activity.  Consequently the observing of hazards in this distinct area was specifically discussed amongst the irrigation and maintenance crew.  The problem was, however, that they talked about it but did nothing more to make the premises reasonably safe than they did in circumstances where there was less expected traffic.  There was no individual inspection of sprinkler heads in the area, but only a general “keep your eyes open” approach, which is that which was followed in the ordinary circumstances.

The Court accepted that the City failed to make the premises reasonably safe on the following basis:

[26]           The City did not take steps commensurate with the circumstances so as to make this discrete area, in particular the sprinkler head locations in the area, reasonably safe for individuals visiting the area.  This area was a discreet sprinkler area with a limited number of sprinklers and easily inspected on an individual basis.  Checking each sprinkler head located in this area would not have required more staff, and although it may have taken a greater amount of time than their normal inspection, that cost could have been passed on to the Dragon Boat Festival organizers as part of the service package.  It would not have been necessary to immediately repair each and every sprinkler head found to be a hazard as long as they were marked so as to bring their presence to the attention of the visitors.

The Plaintiff was not contributorily negligent, because the hole was hidden:

[31]           In this case the hole was partially or totally hidden, there was no reason for the Plaintiff to expect such a hazard given the location and circumstance and nothing the Plaintiff did or did not do would suggest that the Plaintiff was not exercising ordinary diligence in the circumstance.  The occupier in this case could reasonably foresee a risk to a visitor exercising ordinary diligence and therefore is in breach of its duty as described aforesaid.  (See:  Lorenz v Ed-Mon Developments Ltd, 1991 ABCA 82 (CanLII)).

The City argued that policy considerations such as financial restrictions should insulate it from liability.  The Court rejected this on the basis that policy decisions are available as a defence on the basis of common law negligence, but not under the Occupiers’ Liability Act where the legislation creates a positive duty:

[35]           Such a policy exemption would apply to the traditional tort law duty of care that generally applies to a governmental agency as it does to any individual.  In such a case the governmental agency is exempt from imposition of the duty of care in situations which arise from a pure policy decision, (Just at para 28).


[39]           With these principles in mind it is my view that the policy/operational analysis is not applicable to this case.  That analysis applies only to common law tort duty; it is not part of the analysis in dealing with the statutory duty such as provided in the OLA as described aforesaid.  The OLA provides for specific affirmative statutory duty and I see no place for the application of the policy/operational analysis in determining liability under the OLA.

[44]           It is my conclusion that the common law policy operation exemption does not in the present circumstances apply in the face of the affirmative statutory duty imposed upon the City by the OLA.

The Court also considered whether the municipality was insulated from liability on the basis of Section 530 of the Municipal Government Act, which states:

A municipality is not liable for damages caused by:

(a)               a system of inspection, or the manner in which inspections are to be performed, 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.

Section 530 of the Municipal Government Act provided an exemption for any inspection or maintenance activities:

[52]           Section 530 does not just restate the policy/operational analysis principle set out in Just, it establishes exemption for any damages including damages arising from what might otherwise be considered negligence in the implementation of policy, which might be a basis of liability and damages in the common law sphere.

[53]           In this case the matter for consideration is a matter of inspection and maintenance, that is, the failure to adequately inspect and maintain in the circumstances present which I have found to be a breach of the OLA in the circumstances, to make the premises reasonably safe for the visitors to the subject premises.

[54]           In my view, s530 does not require any policy/operational analysis.  Prima facie it exempts the governmental agency from liability for damages whether they arise from policy or any operational decision relating to inspection and/or maintenance.

The Court noted that section 530 of the Municipal Government Act appears to be in conflict with the Occupiers’ Liability Act.  However, in reviewing both pieces of legislation, the Municipal Government Act was specific legislation that took priority:

[60]           The Court is accordingly left to try and determine which provision will prevail.  In Lèvis (Ville) C Cȏtè, 2007 SCC 14 (CanLII), [2007] SCJ No 14 , Bastarasch J wrote at para 58,

Where a conflict exists, legislative intent must be considered, which includes two presumptions. The first is that the more recent law prevails over the earlier law, and the second is that the special law prevails over the general. The Court determined that the presumptions here pointed to s. 530 prevailing over the Occupiers’ Liability Act.

[61]           In my view, these two presumptions would point to s530 prevailing over the OLA duty.  At the time s530 became law in 1994, the OLA had been in place for many years.  The legislature is deemed to be all knowing and is presumed to know that the duty imposed by the OLA applied to governmental agencies including municipal bodies yet no attempt was made to exempt the OLA from the application of s530.

[62]           Section 530 is very specific legislation that deals with exempting the municipal body from liability for damages only with respect to inspection or maintenance.  It does not exempt any municipal agency from all liability under the OLA only for breach of duty thereunder relating to inspection and maintenance.  Arguably, the special that is s530 prevails over the general, that is the OLA.

As a result, the City was not liable to the Plaintiff:

[64]           Accordingly I conclude that s530 of the Municipal Government Act exempts the City of Lethbridge from liability under the OLA for any breach of affirmative duty of care that arises in conjunction with inspection or maintenance as is the circumstance in this case.

[65]           But for the provisions of s530 of the Municipal Government Act, I would have concluded that the City would be liable to the Plaintiff for damages arising from breach of their duty under the OLA as I have described aforesaid, however s530 of the Municipal Government Act, I am satisfied prevails over the provisions of the OLA with respect to issues of inspection or maintenance, and exempts the City from liability for damages arising therefrom, and accordingly, the Plaintiff’s claim must be  dismissed.