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LIABILITIES OF MUNICIPALITY - Occupiers’ liability - Safety

Wednesday, July 25, 2018 @ 8:29 AM  

Lexis Advance® Quicklaw®
Action by the plaintiff, Kyle McAllister, for a finding of liability by the defendant, City of Calgary, for injuries suffered in an assault in a Plus 15 connecting a parkade to a light rail transit (LRT) station. McAllister alleged that the City was an occupier of the premises in question and as such owed him the duty of care under s. 5 of the Occupiers’ Liability Act to ensure he was reasonably safe in his use of the premises. The City argued that it was not an occupier of the Plus 15. It argued that the Plus 15 was a highway or recreational trail exempt from the application of the Act. It also argued that it could not exert the level of control over the Plus 15 required to give it occupier status under the Act. The City claimed that the Plus 15 was not only a conduit from the parkade to the station itself, but also allowed for the passage of pedestrian traffic between two neighbourhoods. In the alternative, the City argued that if it was an occupier, giving rise to the statutory duty of care, McAllister failed to prove the standard of care of a municipal transit service in 2006 with respect to the issues of lighting, cameras, sufficiency of peace officers and other personnel, and the reasonableness and efficacy of a trespass ban or special events policy. Finally, the City argued that there was no causal connection between any breach that might have occurred and McAllister’s injuries.

HELD: Action allowed. The City had a bylaw defining the terms “transit property” as any premises owned, used or occupied by the City for transit purposes and “transit station” as any building or structure owned, used, or occupied by the City for transit purposes which was open to the public. Those definitions were sufficiently broad to include the Plus 15 in issue. The bylaw also empowered transit officials to exercise control over persons on the premises. The City was an occupier of the Plus 15. McAllister was a visitor to the premises under the Act. The City owed McAllister a duty of care. At a minimum, the duty of care included the installation and maintenance of sufficient lighting, video surveillance, and staffing levels to deter crime or allow its detection and an appropriate and timely response. The City failed to meet the standard of care of a municipality in providing a safe and secure transit environment, and therefore breached the duty of care owed to McAllister. The Plus 15 had deficient video surveillance and lighting which resulted in an inability on the part of video surveillance operators to take notice of the assault and dispatch transit officers or CPS to the scene of the assault. In addition, the transit system as a whole was understaffed by peace officers on that date. But for the City’s breach of s. 5 of the Act, the assault would have been stopped at an earlier stage and McAllister’s injuries would have been less severe.

McAllister v. Calgary (City), [2018] A.J. No. 755, Alberta Court of Queen’s Bench, J.C. Kubik J., June 19, 2018. Digest No. TLD-July232018006