T-831-86
Blanche L. Stuart (Plaintiff)
v.
The Queen in right of Canada (Defendant)
INDEXED AS: STUART v. CANADA
Trial Division, Reed J.—Calgary, May 9, 10, 11,
12 and 13; Ottawa, July 28, 1988.
Crown — Torts — Provincial legislation, abolishing
common law test of "unusual danger", applicable to federal
Crown — Crown Liability Act, s. 3 subjecting federal Crown to
same law of tort as private person, including common law of
tort as modified by provincial legislation in force at time of
tort — Federal legislation imposing duty of reasonable care on
federal Crown.
Torts — Occupiers' liability — Plaintiff injured in tripping
on curb in dimly lit Calgary Airport parkade — Application of
test in Indermaur v. Dames — Whether defendant took
reasonable care to prevent injury to plaintiff from unusual
danger — Factors to be considered in determining whether
danger unusual — Whether danger usually found in carrying
out activity for which invitee entering property dependent upon
combination of elements in each case — Defendant knew or
ought to have known of danger.
The plaintiff was injured in tripping on a cement median
used to divide rows of cars in the parkade at Calgary Interna
tional Airport. The area was dimly lit and there were no
pedestrian walkways. It was agreed this was an occupiers'
liability case and that the plaintiff was an invitee. It was
contended that the test in Indermaur v. Dames should apply.
The issue was whether the defendant had taken reasonable care
to prevent injury to the plaintiff from an unusual danger.
Alternatively, it was argued that the Alberta Occupiers' Liabil
ity Act, which abolished the common law test of unusual
danger, should apply to the federal Crown by virtue of section 3
of the Crown Liability Act, which makes the federal Crown
liable in tort for damages for which a private person would be
liable.
Held, the action should be allowed, but the plaintiff was 80%
responsible for the accident.
In determining whether an unusual danger exists, the follow
ing factors should be considered: (1) whether the danger was
concealed (although a danger does not have to be concealed to
be unusual); (2) lack of other reported accidents (although the
fact that the premises were used daily by many people for many
years without serious accident is not proof that an unusual
danger does not exist, particularly where the type of accident
involved is tripping, which is not likely to result in serious
injuries); (3) ease of removal of danger (a danger which could
easily be removed is unusual, because reasonable people would
remove such a danger). In applying the test of whether the
danger is one usually encountered in carrying out the activity
for which the invitee entered the premises, one must look to the
particular combination of elements in each case. Although
individual elements, such as cement curbs and dim lights, may
be usual in parkades, the particular combination in this case
created an unusual danger. The defendant knew or ought to
have known about the danger because it was obvious to anyone
walking through the parkade. It could not escape liability by
alleging reliance on the architects as it had already corrected
another danger for which the same architects had been respon
sible. The warning signs erected at the entrance indicated
knowledge of the danger.
In any case, the provincial statute should apply to the federal
Crown. The plain meaning of section 3 of the Crown Liability
Act was that the federal Crown was subject to the same law of
tort to which a private person was subject. That included the
common law of tort as modified by any provincial legislation in
force at the time of the tort. The proposition that the federal
Crown is not bound by changes in the statute law of tort
enacted after May, 1953, was based upon cases decided before
1952, when the relevant statutory provisions differed signifi
cantly from section 3 of the Crown Liability Act. Statutes are
deemed to be speaking to the present, in the absence of an
express contrary statement. There is no express reservation of
liability in section 3 of the Crown Liability Act to that to which
a private person was subject "as of May, 1953". The trend in
recent decisions has been towards treating the federal Crown as
a private person. The defendant failed to meet the duty of
reasonable care required in Alberta of a private person.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Crown Liability Act, R.S.C. 1970, c. C-38, s. 3.
Exchequer Court Act, R.S.C. 1906, c. 140, ss. 19, 20.
Exchequer Court Act, R.S.C. 1952, c. 98, s. 50.
Interpretation Act, R.S.C. 1970, c. 1-23, s. 10.
Negligence Act, R.S.O. 1950, c. 252, ss. 2, 6.
Occupiers' Liability Act, R.S.A. 1980, c. O-3, s. 5.
CASES JUDICIALLY CONSIDERED
APPLIED:
Indermaur v. Dames (1867), L.R. 2 C.P. 311 (Ex.Ct.);
Austin v. Gendis Inc. and Greenberg Store (1985), 68
N.B.R. (2d) 57 (Q.B.).
DISTINGUISHED:
Green v. Fibreglass Ltd., [1958] 2 Q.B. 245; La Reine v.
Breton, [1967] S.C.R. 503.
CONSIDERED:
Young v. Dari Shoppes Ltd. (1971), 4 N.B.R. (2d) 145
(C.A.); Campbell v. Royal Bank of Canada, [ 1964]
S.C.R. 85; Snitzer v. Becker Milk Co. Ltd. et al. (1976),
15 O.R. (2d) 345 (H.C.); Suche v. Canada (Ministry of
Transport) (1987), 10 F.T.R. 95 (T.D.); London Graving
Dock Co. Ld. v. Horton, [1951] A.C. 737 (H.L.); Maimy
et al. v. Can. Safeway Ld., [1975] 6 W.W.R. 612 (Sask.
Q.B.); Preston v. Canadian Legion, Kingsway Branch No.
175 et al. (1981), 123 D.L.R. (3d) 645 (Alta. C.A.);
Schwella, John F. v. The Queen and Hydro-Electric
Power Commission of Ontario et al., [1957] Ex.C.R.
226; The Queen v. Murray et al., [1967] S.C.R. 262;
Lamoureux, Luc v. Le Procureur Général du Canada,
[1964] Ex.C.R. 641; The King v. Armstrong (1908), 40
S.C.R. 229; Gauthier v. The King (1918), 56 S.C.R. 176;
Baird v. The Queen in right of Canada, [1984] 2 F.C.
160 (C.A.); R. v. Nord-Deutsche Versicherungs-Gesell-
schaft et al., [1971] S.C.R. 849.
REFERRED TO:
Bay-Front Garage Ltd. v. Evers, [1944] S.C.R. 20;
Porter v. Sinbad's Limited (1985), 156 A.P.R. 327 (Nfld.
S.C.); Houle v. S.S. Kresge Co. Ltd. (1974), 55 D.L.R.
(3d) 52 (Dist. Ct.); Sanfacon v. Dartmouth School
Board (1977), 25 N.S.R. (2d) 451 (S.C.); Pfister v.
T.T.C., [1946] 3 D.L.R. 71 (Ont. C.A.); Burke v. The
Field and Stream Inc., Braemar Inc., Broderick and
Cooke (1979), 61 A.P.R. 132 (P.E.I. S.C.); Smith v.
Provincial Motors Ltd. (1962), 32 D.L.R. (2d) 405 (N.S.
S.C.); Stuckless v. The Queen (1975), 63 D.L.R. (3d)
345 (F.C.T.D.); Kennedy v. The Queen in right of
Canada (1980), 116 D.L.R. (3d) 206 (F.C.T.D.); Kwas-
nie v. Penthouse Towers Ltd. and Cal-Mar Industries
Ltd., [1972] 3 W.W.R. 266 (Alta. S.C.); Dale Estate and
Dale v. Whelan and Loveys (1986), 62 Nfld. & P.E.I.R.
38 (Nfld. S.C.).
AUTHORS CITED
Linden, Allen M. Canadian Tort Law, 4th ed. Toronto:
Butterworths, 1988.
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law
Book Co., 1983.
COUNSEL:
Shelley N. Phillips for plaintiff.
John E. Davison and William E. McNally for
defendant.
SOLICITORS:
Howard, Mackie, Calgary, for plaintiff.
MacLeod Lyle Smith McManus, Calgary, for
defendant.
The following are the reasons for judgment
rendered in English by
REED J.:
EDITOR'S NOTE
The Executive Editor has chosen to report this
case for its useful review of occupiers' liability at
common law and for its discussion of the question
as to whether the federal Crown is bound by
provincial statutes dealing with liability in tort.
Omitted from the report are (1) the initial 13
pages of the reasons for judgment in which the
evidence is reviewed and (2) the final six pages
covering the assessment of damages. Summaries
of the deleted portions are provided.
The plaintiff's claim was for damages and the
case was one of occupiers' liability. The plaintiff
sustained substantial injuries when she tripped on
a cement median dividing rows of cars in the
parkade at the Calgary International Airport. The
injuries included fractures of the wrist and hand,
facial scrapes and bruising and damage to dental
appliances.
Although there was a sign at the entrance ramp
warning parkade users to "watch your step", it
was too wordy to be read quickly and not well
located. The plaintiff's case, however, was that
lighting levels were so low as to create an unsafe
condition. It was alleged that half of the lights
were extinguished for energy conservation and
that maintenance practices were inadequate. The
question was whether a sufficiently high level of
illumination was selected by the designer, as the
maintained in service level, and whether there
were other factors indicating that additional safety
measures or better lighting should have been
provided where the accident occurred. The Court
found that the energy conservation practice—
turning off alternate rows of lights—had not con
tributed to the plaintiff's fall. Nor could the Court
conclude that the lighting system had been
designed other than in accordance with generally
accepted standards at the time. It was found,
however, that the parkade design—with no
pedestrian walkways so that users had to wend
their way among parked cars and over cement
curbs—together with the low level of illumination
where the fall occurred, were such as to create
an unusual danger. As to whether the plaintiff had
knowledge of the hazard, Reed J. had little dif
ficulty in concluding that the plaintiff knew or
ought to have known of the curbs and was aware
of the dim lighting. On the other hand, she was
unfamiliar with the parka de and was following
relatives who were more familiar with the
premises.
Applicable Legal Test—An Unusual Danger
Both counsel start with the proposition that this
is an occupiers' liability case and that the plaintiff
is an invitee. There is no dispute as to this aspect
of the case. Thus, it is contended that the test set
out in Indermaur v. Dames (1867), L.R. 2 C.P.
311 (Ex.Ct.), at page 313 is applicable:
What then is the duty imposed by law on the owner of these
premises? They were used for the purpose of a sugar refinery,
and it may very likely be true that such premises usually have
holes in the floors of the different storeys, and that they are left
without any fence or safeguard during the day while the
workpeople, who it may well be supposed are acquainted with
the dangerous character of the premises, are about; but if a
person occupying such premises enters into a contract, in the
fulfilment of which workmen must come on the premises who
probably do not know what is usual in such places, and are
unacquainted with the danger they are likely to incur, is he not
bound either to put up some fence or safeguard about the hole,
or, if he does not, to give such workmen a reasonable notice
that they must take care and avoid the danger? I think the law
does impose such an obligation on him. That view was taken in
the judgment in the court below, where it is said: "With respect
to such a visitor at least, we consider it settled law that he,
using reasonable care on his part for his own safety, is entitled
to expect that the occupier shall on his part use reasonable care
to prevent damage from unusual danger which he knows or
ought to know; and that, when there is evidence of neglect, the
question whether such reasonable care has been taken by
notice, lighting, guarding, or otherwise, and whether there was
such contributory negligence in the sufferer, must be deter
mined by a jury as a matter of fact." [Underlining added.]
When the jurisprudence is reviewed one finds an
inordinate amount of ink spilled, respecting the
rules applicable in occupiers' liability cases and, in
particular, considerable confusion as to exactly
what is meant by the test set out in Indermaur v.
Dames. In Linden, Canadian Tort Law (4th ed.,
1988) at page 599, the following is found:
The Canadian common law of occupiers' liability, which is
concerned with the tort responsibility of those who control land
to those who enter onto their land, is a mess. In this area,
perhaps more than in any other part of tort law, rigid rules and
formal categories have spawned confusion and injustice. It is
understandable in part because "the history of this subject is
one of conflict between the general principles of the law of
negligence and the traditional immunity of landowners".
And in Fleming, The Law of Torts (6th ed., 1983),
at page 416:
This emphasis on categories and labels involves a high degree
of formalism which experience has proved to be a fertile source
of unrealistic distinctions, capricious results and all too many
appeals on what should be questions of fact but are distorted
into questions of law. In response to increasing dissatisfaction,
drastic reform in England finally introduced a "common duty"
of reasonable care in favour of all lawful visitors alike.
Specifically with respect to invitees, Linden writes,
at page 607:
The duty that an occupier owes to an invitee was expressed by
Willes J. in Indermaur v. Dames as follows:
.. we consider it settled law, that he, using reasonable care
on his part for his own safety, is entitled to expect that the
occupier shall on his part use reasonable care to prevent
damage from unusual danger, which he knows or ought to
know;..."
In Smith v. Provincial Motors Ltd. it was suggested that, once
it is decided that the entrant is an invitee, four additional
questions should be asked: First, was there an unusual danger?
Second, did the defendant know or have reason to know about
it? Third, did the defendant act reasonably? Fourth, did the
plaintiff use reasonable care for his own safety or did he
voluntarily incur the risk?
The question of what is an unusual danger has been the
subject of controversy. Indeed, it has been demonstrated that
the concept was introduced into our law by mistake—a mis
reading of the authorities by Willes J. Nevertheless, the courts
have clung to the concept to the present day.
The term unusual danger has been held to be a "relative"
one, depending upon the kind of premises involved and the class
of persons to which the invitee belongs. A danger is unusual if
it "is not usually found in carrying out the task or fulfilling the
function which the invitee has in hand". This is an objective
notion rather than a subjective one, so that it is the perspective
of the class which the particular invitee is a member of rather
than the actual knowledge and experience of the particular
invitee which controls. The plaintiffs knowledge is not relevant
to the question of whether a danger is an unusual one; it is
relevant only to the questions of contributory negligence and
voluntary assumption of risk.
And in Fleming, at pages 429-430:
The standard of care due to invitees was authoritatively
formulated by Willes J., in the leading case of Indermaur v.
Dames: "We consider it settled law that [the invitee], using
reasonable care on his part for his own safety, is entitled to
expect that the occupier shall on his part use reasonable care to
prevent damage from unusual danger, which he knows or ought
to know; and that, where there is evidence of neglect, the
question whether such reasonable care has been taken, by
notice, lighting, guarding or otherwise, and whether there was
contributory negligence in the sufferer, must be determined by
a jury as a matter of fact."
The plain tenor of this pronouncement is that an invitor's
obligation with respect to dangers on his premises should be
measured by the flexible standard of reasonable care, as part of
the general law of negligence. Unfortunately, it has suffered
from a tendency, fostered by textwriters of the past and long
abetted by the courts, to exalt its status to something akin to a
statutory definition and distort its meaning, usually to the
disadvantage of claimants, by converting what should properly
be questions of fact into dogmatic propositions of law. Lately,
however, that trend has been reversed, either by amending
legislation, as in England, or by judicial initiative in circum
venting distasteful precedent of an earlier era.
The hallmark of an invitor's duty, as compared with that of a
licensor, is that it extends not only to dangers which he knows,
but also to those which he ought to know. In short, he must
take affirmative steps to ascertain the existence of, and elimi
nate, perils that a reasonable inspection would disclose.
In Austin v. Gendis Inc. and Greenberg Store
(1985), 68 N.B.R. (2d) 57 (Q.B.), at page 59, Mr.
Justice Creaghan expressed the view that in cases
such as the present, a test requiring "reasonable
care" seems more relevant than expending effort
determining whether or not an unusual danger
existed. I must admit I share the view expressed by
Mr. Justice Creaghan. Indeed, my reading of
Indermaur v. Dames would lead me to conclude
that the Court was doing no more in that case than
applying a reasonable care test. The particular fact
situation, however, was one where an unusual
danger did exist (i.e. unfenced holes in floors). I
would have thought that the test in Indermaur v.
Dames was no more than a particular instance of
the broader principle which requires the taking of
reasonable care to avoid injury to those to whom a
duty is owed. I cannot forbear citing Mr. Justice
Creaghan's specific comments (at pages 59-60):
A review of the case law and authorities in the area of
"occupier's liability" leads me to the conclusion that the issue
of the "use of reasonable care" is perhaps more relevant than
an effort to come to some relative definition of "unusual
danger". Indeed the use of the standard negligence test of what
is reasonable in the circumstances to see that persons entering
the premises are reasonably safe while there, would seem to be
an appropriate test of the duty owed by the occupier.
I feel it worthwhile to reference a comment on the rule in
Indermaur v. Dames by Professor A. Linden, A Century of Tort
Law in Canada: Whither Unusual Dangers, Products Liability
and Automobile Accident Compensation? (1967), 45 Can. B.
Rev. 831 at p. 838:
"Upon its surface, this simple statement appears to express
an obligation merely to use reasonable care, that is, the
ordinary negligence standard. Dean Prosser has taken it to
mean this. Some judges, too, have confused this principle
with the usual standard of reasonable care. However, most
English and Canadian judges have not been satisfied with
this facile interpretation. Instead, they have fastened onto the
words "unusual danger" and, as if they were statutory in
form, have constructed around them a body of law that is
always confusing, often meaningless, sometimes unjust and
totally unnecessary. Hypnotized by the prose of Justice
Willes, the mid-Victorian architect of the law, whom the
"muse has inspired", they have adhered to the concept of
unusual danger for over a century without checking its
genealogy. Had they done so, they would have discovered
that Justice Willes misstated the law."
See also Benneth v. Dominion Stores (1962), 30 D.L.R. (2d)
266, per MacDonald, J., at pp. 269 and 270 (N.S.S.C.); E.
Harris, Some Trends in the Law of Occupier's Liability
(1963), 41 Can. B. Rev. 401 at p. 428 et seq.
Nevertheless, like Mr. Justice Creaghan, I am
constrained by the jurisprudence to embark on an
analysis as to whether or not the defendant took
reasonable care to prevent injury to the plaintiff
from unusual danger. First of all, I do not accept
that in order to be unusual, a danger must be
concealed: some jurisprudence seems to have
adopted such a test. In Young v. Dari Shoppes
Ltd. (1971), 4 N.B.R. (2d) 145 (C.A.), at page
149, a reference to Halsbury's Laws of England,
2nd ed., Vol. 23, para. 853, pages 604-605 is
found:
The duty of the occupier of premises on which the invitee
comes, is to take reasonable care that the premises are safe,
and to prevent injury to the invitee from unusual dangers
which are more or less hidden, of whose existence the occupier
is aware or ought to be aware, or, in other words to have his
premises reasonably safe for the use that is to be made of
them.
Reference can also be made to Bay-Front Garage
Ltd. v. Evers, [1944] S.C.R. 20 and Porter v.
Sinbad's Limited (1985), 156 A.P.R. 327 (Nfld.
S.C.), at pages 331-332.
While it may be that hidden or concealed dan
gers are always unusual, I cannot find in reviewing
the jurisprudence that this is a necessary factor
required in order to classify a situation as one of
unusual danger. I note that in Campbell v. Royal
Bank of Canada, [1964] S.C.R. 85, at page 95,
the evidence before the Trial Judge, as summa
rized by the Manitoba Court of Appeal, is as
follows:
The plaintiff apparently lived in Western Canada all her life
and spent the ten years prior to the accident, in the city of
Brandon. She knew what the snow conditions were outside, and
1 think we may take judicial notice of the fact that she must
have encountered the same situation in every shop, either city
or rural office, department store, school and public building she
visited during her lifetime. On at least nine occasions during
the giving of her evidence in Court at the trial, she stated that
she noticed the floor was wet; that she saw patches of water;
that she thought it was wet ("not all over, but in spots"). In
addition to this, of course, at least two witnesses testified that
the bank floor was wet in spots.
There is no doubt that the unusual danger in that
case was not concealed. Equally, in Snitzer v.
Becker Milk Co. Ltd. et al. (1976), 15 O.R. (2d)
345 (H.C.) the uneven sidewalk and the pot holes
in the parking lot in question could not be said to
be concealed dangers, and in Houle v. S.S. Kresge
Co. Ltd. (1974), 55 D.L.R. (3d) 52 (Dist. Ct.).
Secondly, some cases have held that because the
premises have been used daily by many people for
many years, without accident, this constitutes
proof that an unusual danger could not be said to
have existed, see: Porter v. Sinbad's Limited
(supra), at pages 332-333, which refers to Sanfa-
con v. Dartmouth School Board (1977), 25 N.S.R.
(2d) 451 (S.C.) at pages 460-461; Pfister v.
T.T.C., [1946] 3 D.L.R. 71 (Ont. C.A.), at page
80; Burke v. The Field and Stream Inc., Braemar
Inc., Broderick and Cooke (1979), 61 A.P.R. 132
(P.E.I. S.C.), at page 142. In the present case, the
defendant led evidence that the parkade had been
used for many years by many people. Mr. Mazu-
rek, the superintendent of safety for the airport,
gave evidence that he was aware of only three
other accidents in the airport (none involving the
parkade). All the accidents to which he referred
were of a fairly serious nature. There could have
been many tripping accidents in the parkade of
which Mr. Mazurek did not know, indeed, which
were never reported because they did not result in
serious consequences. I do not accept that the fact
that because the parkade was used by many people
for many years without serious accident an unusu
al danger did not exist. My reading of the jurispru
dence is that such evidence is merely one factor to
be taken into account in assessing the nature of the
danger but it is not conclusive. In this case, I find
that the evidence of frequent use of the parkade by
many others, does not have great weight. As noted
above, tripping accidents by their nature are usual
ly not likely to be serious; they, therefore are likely
to remain unreported.
A third aspect of the jurisprudence to be con
sidered is the ease with which a situation of unusu
al danger may be remedied. In Smith v. Provincial
Motors Ltd. (1962), 32 D.L.R. (2d) 405 (N.S.
S.C.), at page 412 the decision in London Graving
Dock Co. Ld. v. Horton, [1951] A.C. 737 (H.L.),
at page 774 is cited:
If removal of a danger is easy it could hardly be a usual danger,
because reasonable people who are careful of the safety of
others would remove such dangers from their premises.
Mr. Justice McNair referred to this consideration
in Suche v. Canada (Ministry of Transport)
(1987), 10 F.T.R. 95 (T.D.), at pages 104-107, as
did Mr. Justice Dubé in Stuckless v. The Queen
(1975), 63 D.L.R. (3d) 345 (F.C.T.D.), at pages
350-351. And, the Associate Chief Justice, in Ken-
nedy v. The Queen in right of Canada (1980), 116
D.L.R. (3d) 206 (F.C.T.D.), at page 218 referred
to the decision in Maimy et al. v. Can. Safeway
Ld., [1975] 6 W.W.R. 612 (Sask. Q.B.):
"It is perhaps a test of some value to determine whether a
condition is one of unusual danger to investigate the ease by
which the occupier might avoid it."
See also, the decision of Mr. Justice Spence in
Campbell v. Royal Bank (supra), at pages 96-97.
I am not entirely sure I appreciate the scope of
this consideration as it relates to "unusual dan
gers". On the basis of the jurisprudence cited to
me, it seems that unusual dangers can be classified
into two broad types: those which I will call struc
tural (pot holes; uneven sidewalks; faulty wiring)
and those which can be called transient in nature
(water on bank floors; icy patches in entrance
ways; plastic bands or twine on floors). With
respect to the second category, it will almost
always be reasonably easy to remedy the "unusu-
al" situation. With respect to the first category,
those which are more structural in nature, it will
usually never be so. The application of the "ease of
removal" test to the first category would always
seem to result in a finding that no unusual danger
existed. I doubt that it applies to the first category.
In any event, counsel for the plaintiff led evidence
to the effect that the visibility of the curbs could
have been significantly increased had its edges
been painted in a contrasting colour (yellow or
white). She argues that this would have been an
easy way to have remedied, to a substantial degree,
the situation of unusual danger which existed. I
accept that argument.
The test to be applied, as I understand it, is
whether or not the danger is one usually found in
carrying out the activity for which the invitee
came onto the property. It is an objective test and
the actual knowledge of the plaintiff is not relevant
for this determination. Mr. Justice McNair in
Suche, supra, at page 20, expressed the test as
follows:
The rule in /ndermaur v. Dames is sometimes more simply
stated as imposing a duty on the part of the invitor to keep his
premises reasonably safe for the use that is to be made of them.
A danger is unusual if it "is not usually found in carrying out
the task or fulfilling the function which the invitee has in
hand"
As noted by the House of Lords in London Grav
ing Dock Co. Ld. v. Horton, [1951] A.C. 737, at
page 745, persons such as stevedores or seamen
who are accustomed to negotiating difficult prem
ises would not be entitled to plead that certain
situations constituted unusual dangers, while
members of the public negotiating the same prem
ises would be so entitled. To quote from that case,
"A tall chimney is not an unusual difficulty for a
steeplejack though it would be for a motor
mechanic" (at page 745). In Campbell v. Royal
Bank (supra) at page 93, Mr. Justice Spence, in
writing the majority decision of the Supreme
Court, noted that in that case "the invitee was an
ordinary customer of the bank but of no particular
class". Similarly, in this case, the plaintiff is an
ordinary customer of the parkade and of no par
ticular class.
Counsel for the defendant argues: that cement
curbs in parkades are usual; that dim lights in
parkades are usual; that individuals using parkades
to park their car would expect these conditions and
conduct themselves accordingly. In my view, the
question is not whether cement curbs and dim
lights are in a general sense usual in parkades.
Rather, the question is whether the particular
combination of factors which existed in this case
(curbs, angle parking, dim lights, no natural walk
way) are usual in parkades. I do not accept on the
basis of the evidence that it is usual to design
parkades so that there are no natural pathways to
the exits (whether or not such exit is also a road
way). I conclude that while individual elements,
such as cement curbs and dim lights may be usual
in parkades, the particular combination of ele
ments which existed in this case has not been
proven to be so. I conclude that the combination of
the several elements noted above, in this case, led
to the existence of what in law is classified as an
unusual danger.
I have found the similar fact cases, cited to me,
to be of little assistance: an uneven sidewalk is an
unusual danger (Snitzer v. Becker Milk Co. Ltd.,
supra); uneven steps are not (Young v. Dari
Shoppes, supra); curbs in parking lot dividing
parking area from a sidewalk is not an unusual
danger (Sanfacon v. Dartmouth School Board,
supra) while an unlit curb in a parking area (in
natural pathway towards the exit) is an unusual
danger (Kwasnie v. Penthouse Towers Ltd. and
Cal-Mor Industries Ltd., [1972] 3 W.W.R. 266
(Alta. S.C.)); pot holes in a parking lot where it is
known pot holes develop is an unusual danger
(Houle v. S.S. Kresge Co. Ltd., supra) but a
4.5-inch discrepancy between the level of a hall
and a stairway is not (Porter v. Sinbad's Limited,
supra); icy patches in winter are unusual dangers
(Suche v. Canada (Ministry of Transport), supra);
(Stuckless v. The Queen; Smith v. Provincial
Motors, supra), but a well lit differently painted
step between two levels in a store is not (Dale
Estate and Dale v. Whelan and Loveys (1986), 62
Nfld. & P.E.I.R. 38 (Nfld. S.C.)).
The question must be asked then, whether the
danger was one about which the defendant knew
or ought to have known. Counsel for the defendant
argues that the defendant did not know of the
danger and could not reasonably be expected to
know because: (1) there had been no previous
accidents or reported complaints; (2) the defen
dant had relied on those designing and construct
ing the building to ensure that it was constructed
in accordance with the appropriate standards.
Green v. Fibreglass Ltd., [1958] 2 Q.B. 245 is
cited as support for this last contention. I do not
find these arguments persuasive. The Green v.
Fibreglass case dealt with a situation where the
danger was truly hidden from the occupier or
owner of the building (faulty wiring). The occupier
could not be expected to know of the danger. In
the present case, however, the danger was obvious
to anyone walking through the parkade. In such
circumstances, I do not think the defendant can
rely on the fact that architects, designers and
contractors were employed to construct the build
ing. I note that the evidence discloses that the
defendant did not hesitate to correct another
unsafe situation which originally existed (length-
wise drainage slits in the cement curbs), which had
been designed and created by the same designers,
architects and contractors. As noted above, I do
not find the lack of reported complaints or report
ed tripping accidents in the parkade as significant
evidence in this case. The dangerous situation
should have been obvious to employees of the
defendant who were on the premises on a regular
basis. Indeed, the signs at the entrance way (at
parking ramp and in the stairwells) seem to me to
clearly indicate that the defendant knew of the
danger.
Applicable Legal Test—Reasonable Care
Even if I am wrong in finding that the combina
tion of factors in this case constitutes an unusual
danger for occupier's liability purposes, I am still
of the view that the plaintiff must succeed on this
aspect of the case. The accident occurred in Alber-
ta. The Alberta Occupiers' Liability Act, R.S.A.
1980, c. O-3, s. 5 did away with the common law
test of "unusual danger". In that province, occupi-
ers are required to meet the standard of reasonable
care.' See: Preston v. Canadian Legion, Kingsway
Branch No. 175 et al. (1981), 121 D.L.R. (3d) 645
(Alta. C.A.), especially at page 648:
... the effect of the Act is twofold. Firstly, it does away with
the difference between invitees and licensees and puts both
invitees and licensees into the common defined class of visitor.
That in itself is a very helpful improvement in the law. Second
ly, and more importantly, the statute now imposes an affirma
tive duty upon occupiers to take reasonable care for the safety
of people who are permitted on the premises.
While the applicability of the provincial statute
to the federal Crown in this case is not entirely
clear, the conclusion I reach, after a review of the
jurisprudence, is that the legislation does apply.
The starting point is section 3 of the Crown Lia
bility Act, R.S.C. 1970, c. C-38:
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(a) in respect of a tort committed by a servant of the Crown,
or
(b) in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property.
The plain meaning of the text of the statute would
lead a reader to conclude that Parliament intend
ed, in enacting that section, to make the Crown
federal subject to the same law of tort as that to
which a private person is subject. This would seem
to comprehend (in all provinces except Quebec)
the common law of tort as modified by any provin
cial legislation in force at the time of the tort. This
is the law to which private persons of full age and
capacity are subject. There is no express reserva
tion in the statute stating that the Crown is only
' An occupier of premises owes a duty to every visitor on his
premises to take such care as in all the circumstances of the
case is reasonable to see that the visitor will be reasonably safe
in using the premises for the purposes for which he is invited or
permitted by the occupier to be there or is permitted by law to
be there.
accepting the liability to which a private person of
full age and capacity was subject "as of May,
1953"; the general rule is that in the absence of an
express statement to the contrary, statutes are to
be interpreted as always speaking to the present,
see: Interpretation Act, R.S.C. 1970, c. I-23,
section 10.
The jurisprudence, in this area however, is not
entirely clear. There is considerable dicta which
seems to indicate that the federal Crown is not
bound by provincial statutes which set out rules
respecting general tort liability: Schwella, John F.
v. The Queen and Hydro-Electric Power Com
mission of Ontario et al., [1957] Ex.C.R. 226, at
page 230; The Queen v. Murray et al., [1967]
S.C.R. 262, at page 266; as well as the recent
decision of Mr. Justice McNair in Suche (supra).
In addition, there are two cases which purport to
have applied the principle that the Crown federal
is not bound: Lamoureux, Luc v. Le Procureur
Général du Canada, [1964] Ex.C.R. 641 and La
Reine v. Breton, [1967] S.C.R. 503.
An examination of the historical roots of the
statement that the federal Crown is not bound by
changes in the statute law of tort enacted after
May, 1953 is relevant. That examination shows
that the statement originated in jurisprudence
decided before 1952. At that time, the relevant
statutory provisions were quite different from
those which are now in force. In The King v.
Armstrong (1908), 40 S.C.R. 229, the prior statu
tory provisions were interpreted, at page 248 per
Davies J.:
... the construction of the clause (c) of the 16th section of the
"Exchequer Court Act," ... imposed a liability upon the
Crown which did not previously exist, and also that such
liability was to be determined by the general laws of the several
provinces in force at the time such liability was imposed....
In Gauthier v. The King (1918), 56 S.C.R. 176, at
page 179, it was held, relying on the Armstrong
case, that the liability of the Crown should be
determined by the general laws of each province in
force at the time when such liability was imposed;
at page 182:
... section 19 of the "Exchequer Court Act" merely recognizes
pre-existing liabilities; and cases falling within it must be
decided not according to the law applicable to the subject
matter as between subject and subject, but to the general law of
province in which the cause of action arises applicable to the
Crown in right of the Dominion.
Sections 19 and 20 of the Exchequer Court Act,
R.S.C. 1906, c. 140 provided:
19. The Exchequer Court shall have exclusive original juris
diction in all cases in which demand is made or relief sought in
respect of any matter which might, in England, be the subject
of a suit or action against the Crown, and for greater certainty,
but not so as to restrict the generality of the foregoing terms, it
shall have exclusive original jurisdiction in all cases in which
the land, goods or money of the subject are in the possession of
the Crown, or in which the claim arises out of a contract
entered into by or on behalf of the Crown.
20. The Exchequer Court shall also have exclusive original
jurisdiction to hear and determine the following matters:—
(a) Every claim against the Crown for property taken for
any public purpose;
(b) Every claim against the Crown for damage to property
injuriously affected by the construction of any public work;
(c) Every claim against the Crown arising out of any death
or injury to the person or to property on any public work,
resulting from the negligence of any officer or servant of
the Crown, while acting within the scope of his duties or
employment;
(d) Every claim against the Crown arising under any law of
Canada or any regulation made by the Governor in
Council;
(e) Every set-off, counter claim, claim for damages whether
liquidated or unliquidated, or other demand whatsoever,
on the part of the Crown against any person making claim
against the Crown.
Mr. Justice Anglin, in the Gauthier case, noted
that section 19 did not impose new liabilities on
the Crown but merely recognized liabilities
already existing and conferred exclusive jurisdic
tion with respect to them on the Exchequer Court;
at pages 190-191:
In regard to the matters dealt with by this section there is no
ground for holding that the Crown thereby renounced whatever
prerogative privileges it had theretofore enjoyed and submitted
its rights and obligations to be determined and disposed of by
the Court according to the law applicable in like cases between
subject and subject.
It is clear that the statutory provisions in section 3
of the present Crown Liability Act are quite differ-
ent from those in the Exchequer Court Act to
which the Armstrong and Gauthier cases related.
With respect to the two cases which purport to
have applied the principle that the Crown federal
is not bound by general tort statutory law appli
cable in a province, one case does not deal with the
general law of tort at all and the other's correct
ness seems to have been undercut by more recent
decisions. In the La Reine v. Breton, supra, the
Crown was held not to be liable under a provincial
statute which required proprietors to keep side
walks abutting their premises in repair, or to pay
the municipality to do so. This was not a provision
of general tort liability and the Supreme Court's
decision is based on that fact as well as on the
ground that the provincial legislation, in question,
partook of the nature of a tax. In Lamoureux, Luc
v. Le Procureur Général du Canada, (supra), pro
vincial legislation imposing responsibilities on
owners of motor vehicles, even when driven by
employees acting outside their scope of employ
ment (providing the vehicle had not been taken by
theft) was held not applicable to the Crown feder
al. This decision must be read, however, in the
light of the prior and subsequent jurisprudence.
That jurisprudence indicates that there is a general
trend toward finding the Crown federal will be
governed by changes in tort law occurring after
1953. What is more, there is a statement by one
member of the Supreme Court (Albeit by way of
dicta) indicating that this is true even when the
change is of a statutory nature and imposes a
"burden" on the Crown.
The trend towards seeing the Crown federal as
being in the same position as private individuals is
found in the following cases. In Schwella v. The
Queen et al. (supra), it was held that sections 2
and 6 of the Negligence Act of Ontario, R.S.O.
1950, c. 252 applied to the Crown federal so as to
allow the Crown to claim contribution and indem
nity from third parties in cases of contributory
negligence (this was an advantage, not a burden
for the Crown). In The Queen v. Murray et al.,
[1967] S.C.R. 262 it was held that the right of the
Crown federal to recover damages for loss of the
services of a member of the armed forces was
limited by provincial legislation which limited the
liability of owners of motor vehicles vis-a-vis
gratuitous passengers. It was held that the provin
cial legislation in question related to the liability of
the subject, not the liability of the Crown. In
addition, section 50 of the Exchequer Court Act
[R.S.C. 1952, c. 98], which deemed members of
the armed forces to be servants of the Crown was
in issue. In Baird v. The Queen in right of Canada,
[1984] 2 F.C. 160 (C.A.), it was held that while
liability which arose subsequent to the 1953 date,
as a result of a change in provincial statutory law
might not apply to the Crown federal, liability
which arose as a result of a change in the common
law, would apply to the Crown federal (see Le
Dain J., at pages 185-186). The statement by one
of the members of the Supreme Court is found in
R. v. Nord-Deutsche Versicherungs-Gesellschaft
et al., [1971] S.C.R. 849. Mr. Justice Pigeon
(although dissenting in part, that dissent is not
relevant for present purposes) wrote [at pages
885-886]:
In support of the contention that a provincial statute extend
ing liability for damages, enacted after the date of The Crown
Liability Act does not apply to a claim under that Act, counsel
for appellant relied essentially on Gauthier v. The King. The
decision in that case turned upon the construction of the
provisions of the Exchequer Court Act then in force respecting
the extent of jurisdiction to deal with liabilities of the Crown.
That decision was duly considered in a recent appeal: The
Queen v. Murray. This Court did not consider it applicable to a
case under s. 50 of the Exchequer Court Act which is in the
following terms:
50. For the purpose of determining liability in any action or
other proceeding by or against Her Majesty, a person who
was at any time since the 24th day of June, 1938, a member
of the naval, army or air forces of Her Majesty in right of
Canada shall be deemed to have been at such time a servant
of the Crown.
Speaking for the Court, Martland J. said (at p. 268):
The situation is that as a result of s. 50 of the Exchequer
Court Act, Parliament enabled the Crown, in the event of an
injury to a member of the armed services, to enforce such
rights as would be available to a master seeking compensa
tion for loss of the services of his injured servant. What those
rights may be can only be determined by the law in force at
the time and the place when and where the injury to the
servant occurred.
I can see no reason for not construing s. 3 of the Crown
Liability Act in the same way as s. 50 of the Exchequer Court
Act namely, as referring to the law in force at the time and
place when and where the delict or quasi-delict occurs.
Lastly, I turn to Mr. Justice McNair's decision
in the Suche case (supra). He indicated, at page
97 of his decision, that it was the federal Crown
Liability Act and not the Alberta Occupiers' Lia
bility Act which governed the issue before him.
This statement was made, however, in the course
of determining whether the notice requirements of
section 4 of the Crown Liability Act applied. There
is no indication in Mr. Justice McNair's decision
that any jurisprudence was cited to him with
respect to the appropriate legal rules for dealing
with substantive tort liability, as opposed to proce
dural matters. Indeed, there is no reason to think
that Mr. Justice McNair found it necessary to
review, or was referred to the various jurispruden-
tial references dealing with these issues.
While the jurisprudence is somewhat unsettled,
it is my conclusion, from reading the jurispru
dence, that section 3 of the Crown Liability Act
operates so as to make section 5 of the Alberta
Occupiers' Liability Act applicable to the federal
Crown, in this case. The wording of section 3
states that the Crown shall be liable in tort, with
respect to the occupation and control of premises,
as if it were "a private person of full age and
capacity". In Alberta, a private person of full age
and capacity is under an obligation to take reason
able care with respect to premises under his or her
control. It is not the provincial legislature which
has imposed a burden or duty of reasonable care
on the Crown federal (or curtailed its prerogatives
by imposing that duty). The federal legislation, the
Crown Liability Act is the instrument by which
this has been accomplished. It is my view that even
if I am wrong in my conclusion, that the situation
which the plaintiff found in the parkade was one of
unusual danger, the defendant would still be liable
for the damage suffered by the plaintiff (subject to
any finding being made with respect to contrib
utory negligence). The defendant failed to take
reasonable care to make the premises safe for
individuals in the position of the plaintiff.
EDITOR'S NOTE
Special damages up to the date of trial were
agreed upon. Counsel did, however, dispute
amounts claimed in respect of ongoing
expenses—in particular for gardening. Also con
tested was the claim for loss of income. The
Court could not accept that there had been any
loss of income (apart from an amount of $180
claimed as special damages resulting from the
accident).
The plaintiff's evidence, that her typing speed
had been reduced due to the wrist injury, was not
believed. Nor was her evidence that her abilities
to do gardening and other chores had been
impaired. The fact was that she had been promot
ed to office manager and typing was no longer an
important duty of her employment. The plaintiff
had either read too many books by a famous
American trial lawyer or she had been coached
by someone who had. Although the Court did not
believe that the plaintiff continued to suffer pain, it
was clear that she had in the past. General
damages were assessed at $20,000. Since the
plaintiff fell, in large part, because she failed to
pay sufficient attention to where she was walking,
she was held 80% to blame for the accident. In
the absence of information as to whether any
settlement offer had been made, costs were
awarded to the plaintiff.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.