Canada: Case Summary: McAllister v Calgary (City)

Where a visitor on a City of Calgary pedway was assaulted and beaten, the occupier City was held not to owe a duty of care to prevent all crime but, rather, had a duty to maintain an adequate security system in place to detect and respond to crimes within a reasonable time.

McAllister v Calgary (City), 2019 ABCA 214, per Slatter, F; Bielby, M; and Wakeling, T.W.

Facts + Issues

The City of Calgary (City) owns and operates a light rail transit system (LRT) called the C-Train. Pedestrians can access one station – the Canyon Meadows station – 24 hours a day by walking across an open-air overpass that crosses over a multi-lane road, the C-Train tracks, and the tracks of the Canadian Pacific Railway. In the early morning hours of New Year’s Day in 2007, the respondent McAllister walked across the overpass with his friend, Chelsea, on their way to the Canyon Meadows station. By chance, they encountered Chelsea’s ex-boyfriend and one of his friends (the young offenders) as they crossed the overpass. 

Upon seeing Chelsea with McAllister, the young offenders attacked McAllister. After about six minutes of fighting, the young offenders knocked McAllister to the ground and continued punching and kicking him. An unidentified group of youths then joined in the assault for another fourteen minutes, with the entire assault lasting approximately twenty minutes.

At least part of the assault was captured by the C-Train’s surveillance system, but operators of the system did not notice the assault occurring at the time and did not respond.

McAllister survived the assault but suffered significant injuries. He sued the City for damages and was successful at trial.

The trial judge found that the City was at least partly responsible for McAllister’s damages as an “occupier” of the overpass under the Occupiers’ Liability Act, RSA 2000, c O-4 (the Act). The City had breached the duty of care it owed to McAllister as a “visitor” under the Act by failing to meet the standard of care of a municipality in providing a safe and secure transit environment. She found that the surveillance and lighting was deficient and that the surveillance system was understaffed in the context of free fares, longer LRT hours and heavier traffic on New Year’s Eve.

The trial judge held that the camera placement and lighting may not have prevented the assault. However, she also held that the assault should have been seen on the monitors within the first minute and if police had been dispatched at that point McAllister’s injuries would have been less severe. 

The City appealed the trial judge’s decision and on appeal the Court of Appeal identified the following issues:

  1. Whether the City was an “occupier” of the pedestrian overpass.
  2. The scope of the duty of care owed by the City under s. 5 of the Act “in all the circumstances”, having regard to:
    1. the nature of the premises and the use being made of them; and
    2. the fact that the damage was directly caused by the intentional torts of third parties.
  3. The scope of the standard of care owed by the City “in all the circumstances” to have in place systems
    1. to detect assaults on the premises; and
    2. to respond to assaults in a timely way.
  4. Whether or not the negligence of the City caused the damage to the respondent. 

HELD: for the Appellant City; judgment varied to render it liable only for injuries suffered after the first ten minutes of the altercation. 

The Court held that the City was the “occupier” of the overpass within the meaning of s. 1(c) of the Act.

[22]… The City built, owns and maintains it. Whether the City does or does not have a bylaw or formal policy governing use of the overpass is not of overriding importance…. The fact that the City does not in fact control access is not decisive; the point is that it could if it wished. If they chose to do so, City personnel could order anyone to leave the pedestrian overpass.

The Court found that the City owed McAllister a duty of care pursuant to ss. 5 and 6 of the Act, and that duty was informed by the nature of the premises and the use being made of them, as well as the fact that the damage was directly caused by the intentional torts of third parties. 

  1. The Court held that the City did not have a duty to prevent all crimes and damage caused by third parties on the overpass. The City did, however, have a duty to put systems in place that could reasonably detect and respond to assaults and other events.

[61] In this case, there was a relationship between the City and those proposing to use the C-Train system. That would engage a duty of care, although not one to insure against all assaults or other damage. The special relationship and the duty arose from the City’s general invitation to the public to use the C-Train system, and the charging of a fare to do so, combined with express representations made by the City that the system was “reasonably safe”…. A user of the system could not reasonably rely on those assurances as guaranteeing safety, but could rely on them as indicating that a system of detection and response was in place.

The Court determined that the applicable standard of care required the City to have systems in place that would have allowed staff to detect the assault on McAllister within five minutes and respond to the assault within five to ten minutes after that.

The Court of Appeal was careful to limit the breadth of a municipality’s duty to keep visitors reasonably safe. It held that a municipality’s duty will vary across public spaces by the nature of the premises and the use being made of them, and a municipality will generally not be liable for the intentional torts of third parties:

[38] The Canyon Meadows pedestrian overpass is similar to other open public places. For example, there are a number of bicycle trails, walking paths, and related bridges and infrastructure in Calgary. These pedestrian facilities are arguably “premises” that are “occupied” by the City, and are not “highways”, just like the Canyon Meadows overpass. They are made available for the convenience and enjoyment of the public. The City undoubtedly has regard to the overall safety of these places, but there is no reasonable expectation that the City will be responsible for crimes that are committed there. …

[79] For the purposes of this appeal, the duty of care on the City was to have systems in place that could reasonably detect and respond to assaults and other events. What steps were “reasonable” had to take account of the fact that the pedestrian overpass was, and must be, open to the public at all times. This also had to take account of the expense involved in increasing the level of security. The City, for example, was not required to have a 24 hour security guard presence on the overpass, or continuous monitoring of every surveillance camera. It does not follow that the standard of care would be breached every time a visitor was assaulted. Holding one defendant responsible for the intentional torts of another is still exceptional.

The Court agreed with the trial judge that, but for the City’s breach of its duty of care, McAllister would not have suffered the full extent of his injuries. However, because the City’s breach of duty was the failure to prevent the continuation of the assault, as opposed to the failure to prevent the assault entirely, it was only liable for the incremental damage caused by delayed detection and response.

The City was liable for the incremental damage inflicted on McAllister within the final ten minutes of the twenty minute assault.

COMMENTARY

This decision highlights that a municipality may be held liable for incremental damage caused by third parties in some public spaces where the municipality fails to establish systems that in all the circumstances are reasonable to ensure visitors are reasonably safe. That duty is heightened in public spaces where a municipality exercises a significantly greater degree of control and management – spaces such as public transit stations.   

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.

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