Canada: What Duty Does A City Owe To An Individual Who Gets Assaulted On Its Property?

Last Updated: July 29 2019
Article by Ruby Egit and Kevin A. McGivney

Most Read Contributor in Canada, July 2019

A city's duty of care is the focus of McAllister v. The City of Calgary, 2019 ABCA 214. The City of Calgary (City) owns and operates a public transit system. At one of the stations, there is an open-air pedestrian overpass that provides pedestrian access to the station. The overpass is open 24 hours a day and there are no restrictions on access to it.

The plaintiff was with a friend, Chelsea, walking across the overpass when they saw Chelsea's ex-boyfriend and a friend. Chelsea's ex-boyfriend "just lost it" when he saw her with a "perceived rival" and he and his friend proceeded to assault the plaintiff for approximately 20 minutes. The incident went unnoticed by video surveillance monitoring personnel. The plaintiff brought the action against the City of Calgary only. The Court of Appeal (Court) considered whether the City was the occupier of the pedestrian overpass and the scope of the duty and standard of care owed by the City under the Occupiers' Liability Act, RSA 2000, c O-4 (the Alberta OLA).

Was the City an Occupier of the Overpass?

The Alberta OLA defines an occupier as a person who is in physical possession of premises or has responsibility for and control over the condition of the premises, the activities conducted on those premises and the persons allowed to enter those premises.

Although the overpass was open 24 hours a day, had no restrictions to access, and the City did not have staff present in the area the majority of the time, the Court nonetheless found that the City was an occupier of the overpass. In making this finding, the Court emphasized that the City built, owned and maintained the overpass and could block access to it if it chose to do so. Further, City personnel had the authority to order anyone to leave the overpass. These factors were suggestive of the fact that the City had the requisite control and responsibility of the premises pursuant to the Alberta OLA and therefore qualifies as an occupier.

Standard of Care is Not Universal

Section 5 of the Alberta OLA states:

An occupier of premises owes a duty to every visitor on the occupier's 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 the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.

Notwithstanding that the City was an occupier of the overpass, the Court found that the standard of care is not universal. The Court emphasized the importance of the nature and function of the premises in determining the level of control and, therefore, the standard of care. The Court noted that the standard of care will vary between open public spaces such as a sidewalk, park or pedestrian overpass as compared to a building in which the City conducts its business. In this case, the Court found that the City had little real control over who used the overpass and the conduct of persons on it and, therefore, engaged a less expansive duty than would be required in the public transit station itself.

While the City has regard for the overall safety of the pedestrian overpass, there is no reasonable expectation that that the City will be automatically responsible for crimes that are committed on it. The standard of care on the City with respect to the overpass is to have systems in place that could reasonably detect and respond to assaults and other events.

The Duty to Prevent Crime and Damage Caused by Third Parties

The Court found that where a tort is committed by a third party on City property, the nature of the third party's tort becomes relevant in determining the standard of care of the occupier of the premises where the tort occurred. The Court explained that an occupier will only be held responsible for failing to prevent damage caused by the intentional tort of a third party in narrow circumstances. It emphasized that the amount of control of the occupier over the third party was a key factor in determining the standard of care. As an occupier will generally have less control over third parties who engage in intentional torts, the standard of care is lower in those situations.

In this case, the City had no control over the action of the third parties who assaulted the plaintiff, especially as the third parties' violent actions were spontaneous. As a result, the Court did not find the City liable for the assault itself.

Standard of Care for Detecting and Responding to Assault

The standard of care requires the City to respond to an assault in a reasonable time having regard to all the circumstances. The Court found that the standard of care allows the City a reasonable time to first detect the assault (including contacting security personnel or police) and then a reasonable time to respond (i.e. for the security personnel to arrive at the scene).

In this case, the Court found that there would be a reasonable probability that the assault on the respondent should have been detected within five minutes if adequate monitoring had been in place. Once the assault was detected and a call for assistance was made, a response could have reasonably been expected in five to ten minutes after receipt of the call. In this case, the City didn't respond at all. As a result, the City was found liable for the damages that occurred between the time they ought to have responded to the assault and the end of the assault. The City was not responsible for the entirety of the damages, but rather, only for the incremental damages suffered by the plaintiff after 10 minutes, being what the Court determined would be a reasonable response time.

Implications for Other Provinces

We note that this decision may also have implications for other provinces with similarly worded Occupiers' Liability Acts, such as Ontario. However, it is important to note there may be slight differences in each province, which will make a close review of the relevant legislation against case law from other provinces important.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions