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OCCUPIERS’ LIABILITY - Duty of occupier

Friday, June 28, 2019 @ 6:24 AM  

Lexis Advance® Quicklaw®
Appeal by the defendant City from trial judgment finding it liable for the incremental damages that arose when the City failed to respond to an assault on the respondent in a timely way. The respondent was punched by the former boyfriend of his companion on a pedestrian overpass connected to the City’s light rail C-Train system. The initial assault took about six minutes. It was followed by a further assault by a group of unidentified young people for about 15 minutes. At least part of the assault was captured by the surveillance system. The trial judge found that the assault was sufficiently connected to the C-Train system to engage the City’s duty of care. The respondent was a visitor lawfully using the overpass for its intended purpose and was therefore owed a duty of care. The judge found the City failed to meet the standard of care of a municipality in providing a safe and secure transit environment. The trial judge concluded that there were insufficient employees monitoring the security video screens, such that the City staff never actually observed the assault. She concluded that the assault should have been observed on the monitors within the first minute, and that help should have been dispatched. If that had been done, the assault would have been stopped at an earlier stage and the respondent’s injuries would have been less severe.

HELD: Appeal allowed in part. The trial reasons set an artificially high standard of care in suggesting that the assault should have been detected within one minute. The trial judge never made an express finding of the point at which the City became responsible for the incremental damage. The trial judge correctly concluded that the City was the occupier of the overpass. By the very nature of the overpass, the City had little real control over who used it and the conduct of persons on it. Neither the duty of care nor the standard of care required the City to control access at each end of the overpass so that it could screen those who wanted to use it. The City did not literally have a duty to prevent crime or to ensure safety and security. The standard of care did not extend to the City having continuous, real-time monitoring of every camera in the C-Train system. A standard of constant dedicated inspection was unreasonable. The City’s duty only extended to responding to an assault within a reasonable time. The respondent failed to introduce expert evidence on the standard of care respecting the detection of events on the C-Train system or the response time. The trial judge’s finding that the assault should have been observed within the first minute set too high a standard of care and was unreasonable. The standard of care required the City to have in place systems creating a reasonable likelihood of detecting the assault within five minutes. A response should have occurred within the next five to 10 minutes. The City should only be found liable for being one cause of the incremental damage to the respondent within the final 10 minutes of this 20-minute event.

McAllister v. Calgary (City), [2019] A.J. NO. 699, Alberta Court of Appeal, F.F. Slatter, M.B. Bielby and T.W. Wakeling JJ.A., May 30, 2019. Digest No. TLD-June242019013