Stephens v. Shaganappi Village Shopping Centre Inc., 2012 ABQB 436

Court of Queen ’ s Bench of Alberta Citation: Stephens v. Shaganappi Village Shopping Centre Inc., 2012 ABQB 436 Date: 20120704 Docket: 1101 00243 Registry: Calgary Between: Sean Stephens Plaintiff - and - Shaganappi Village Shopping Centre Inc., Kingsley Land Company Ltd., Ron Fiell, Keith Rodney Schramm and Vern McNeice Defendants _______________________________________________________ Reasons for Judgment of J.T. Prowse, Q.C.

Master in Chambers _______________________________________________________ Slip and fall at a shopping centre [ 1 ] The Plaintiff Sean Stephens slipped and fell on ice at the Shaganappi Village Shopping Centre in Calgary. He suffered serious injuries. [ 2 ] Stephens was not a shopper, but rather an employee of one of the tenants of the shopping centre. He was insured under the

Workers ’ Compensation Act (the “Act”) and received benefits for his injuries from the WCB. The action commenced is at least partially a subrogated claim on behalf of the WCB. [ 3 ]

Section 23 of the Act prohibits Stephens from suing other employers or workers in industries covered by the Act. Fiell’s employer, Pipestone Management Ltd. (“Pipestone”) is the operations manager of the shopping centre and is an employer in an industry to which the Act applies. Fiell was one of Pipestone’s workers. The action against Fiell, on the face of it, appears to be barred by

section 23 of the Act. [ 4 ] However, Stephens asserts that he has a cause of action against Fiell for negligence as a director of Pipestone, as opposed to as a worker of Pipestone. That is the issue which must be addressed in this application for

summary dismissal brought by Fiell. Fiell ’s dual role as a worker and as a director [ 5 ] Pipestone is a very small, closely held corporation. Fiell owns all the shares and is the sole director. The work of the corporation is carried out by Fiell and one other employee. Fiell has a dual role as a worker and as a director. [ 6 ] Pipestone agreed to carry out site inspections under its contract with the shopping centre. These inspections were done by Fiell and the other worker of Pipestone.

If snow and ice was observed, either Fiell or the other worker was to report same to the shopping centre owner and, if authorized by the owner, was to hire a snow removal contractor to attend and remove the snow and ice. Stephens asserts (and I must assume, for the purpose of this application, that this assertion is correct) that tenants had complained about icy conditions underneath a downspout near a garbage bin at the back of the shopping centre, but that nothing was done by Fiell or the other Pipestone employee.

Stephens slipped on the ice and was injured. [ 7 ] When Fiell or the other Pipestone employee failed to call in the snow removal contractor, they were clearly acting in their capacity as workers of Pipestone. The issue then becomes whether their failure as workers to instruct the removal of ice near the garbage bin was caused or contributed to by the negligence of Fiell as a director of Pipestone. Stephen ’s allegations against Fiell as a director of Pipestone [ 8 ] Here are Stephen’s pleadings, asserting how Fiell was negligent as a director:

a) Inspection and Maintenance Policies (

I) Failure to take reasonable measures to ensure that the [shopping centre was] properly inspected and maintained; (ii) Failure to take proper or reasonable steps to ensure that the downspouts located on the [shopping centre] were safe and in proper working order;

b) Failure to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, and generally failing to meet the standard and fulfill the duties of a director pursuant to sections 101(1) and 122(1) of the Business Corporations Act ... and other provisions of the [Business Corporations] Act as may be particularized at the trial of this matter; [ 9 ] In other words, Fiell, as director of Pipestone, should have passed corporate resolutions or given other directions to its workers (being Fiell and the other employee) to make sure that Fiell and the other employee were aware of their responsibility to carry out their work (in this case the clearing of snow and ice, including ice under downspouts).

[ 10 ] To establish causation, I believe that Stephens will have to show that the failure of Fiell as Pipestone’s director to implement this corporate policy led to Fiell and the other employee being unaware of the necessity to clear ice which had built up under downspouts, and that this lack of awareness lead to the injury to Stephens. [ 11 ] Here is an excerpt from the cross-examination of Fiell: Q - And it would be essentially you or [the other employee of Pipestone]’s responsibility to ensure that these downspouts in the back of the building were functioning correctly?

A - That’s correct Q - That there was no ice accumulating underneath them? A - That’s correct. [ 12 ] And so, to me, it is plain and obvious that the injury to Stephens did not result from the failure of Pipestone’s director (Fiell) to instruct its workers to clear ice from underneath downspouts. Stephen’s injury resulted from the failure of Fiell and the other employee, as workers, to carry out their known responsibilities. The Nielsen Estate decision [ 13 ] An estate of a deceased worker has succeeded in an action against a director of corporate employer, notwithstanding

section 23 of the Act. This happened in Nielsen Estate v. Epton , 2006 ABCA 382 , 2006 CarswellAlta 1656, 23 B.L.R. (4 th ) 173, 68 Alta.L.R. (4 th ) 34, 45 C.C.L.T. (3d) 31, 277 D.L.R. (4 th ) 267, 401 A.R. 63. In order to obtain

summary dismissal, Fiell must distinguish this case from the Neilsen Estate case. [ 14 ] In my opinion the Nielsen Estate decision, supra, is distinguishable. [ 15 ] In Neilsen Estate the worker who was killed was employed by Fabtec. He was working at Fabtec’s factory, his place of employment. Fabtec manufactured portable structures. A roof

section of a portable structure was being lifted. It was connected to a spreader beam, and the spreader beam was attached to a hook on a hoist. This assembly was being used to lift the roof

section upwards. The spreader beam slipped out of the hook, and Nielsen was killed by the falling beam. [ 16 ] The employees working in the Fabtec factory did not know what they were doing. As the trial judge found: The attempted lift was done in violation of regulatory requirements and was a physically impossible procedure of trying to turn the roof

section over to its other side inside inadequate building space, with limited-use, inapt and uncertified equipment and instruments, and with untutored and inexperienced employees attempting to do it. [ 17 ] Epton had not, as director, caused the creation of any safety policies or lift policies, and there were no safety courses for employees. It is entirely understandable why Epton, a director of Fabtec, was found to be negligent in his capacity as a director, and that his negligence was held to contribute to the death of Nielsen.

[ 18 ] Contrast this with the facts in the case before us. Nobody is suggesting that Fiell and the other Pipestone employee did not know what they were doing or how to do it. They understood that it was their responsibility to see that there was no ice accumulating under the downspouts. For some reason, perhaps laziness or inattention, they simply did not, as workers, carry out their job. Stephen’s injury was cause by their neglect as workers, and not Fiell’s neglect as a director. Conclusion [ 19 ] For the reasons set out above, I summarily dismiss this action against Fiell.

Representations as to costs may be made at the convenience of counsel. Heard on the 24 th day of May, 2012. Dated at the City of Calgary, Alberta this 3 rd day of July, 2012. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Jeff S. Brunner for the Applicant / Defendant Ron Fiell Patrick Kenny for the Workers ’ Compensation Board