Hache v West Edmonton Mall Property Inc, 2017 ABQB 367

Court of Queen’s Bench of Alberta Citation: Hache v West Edmonton Mall Property Inc, 2017 ABQB 367 Date: 20170608 Docket: 1303 04915 Registry: Edmonton Between: Yannick Hache and Her Majesty the Queen in Right of the Province of Alberta Plaintiffs - and - West Edmonton Mall Property Inc., ABC Alberta Corporation and XYZ Alberta Corporation Defendants _______________________________________________________ Decision of L.A.

Smart , Master, Court of Queen's Bench of Alberta _______________________________________________________ Introduction [ 1 ] The Plaintiff, Yannick Hache (“Hache or the “Plaintiff”), has advanced an action against West Edmonton Mall Property Inc. (“the Mall”) on the basis of negligence and occupiers liability. Specifically, Hache alleges that he stepped off an elevated curb when walking to his vehicle and fell through a gap between the elevated curb and the parking lot.

Security video of the incident shows Hache entering the west parking area outside Scotia Bank Theatre at the Mall and proceeding to walk a short distance down a median in the middle of the vehicle ramp of the parking lot.

After stopping to wait for the ramp to clear of cars he then ran across the ramp and jumped over the concrete wall resulting in his falling approximately six metres to the ground below. [ 2 ] The Edmonton Police Service prepared a report indicating that Hache and a companion had been consuming alcohol at an establishment within the Mall since 4:00 PM on the date of the incident which occurred at approximately 7:14 PM. A toxicology report in the hospital file relating to the Plaintiff’s attendance immediately after the incident indicated that the level of ethanol in Hache’s blood at 8:10 PM was 42 mmol/L.

A toxicologist retained by the Mall calculated Hache’s blood-alcohol concentration in the range of 173 -183 mg.

[ 3 ] From the upper level of the parkade there were three concrete surfaces being the center median with a width of approximately 1.98 metres and concrete curbing bordering the concrete walls on each side of the ramp with widths of approximately .73 metres. The concrete walls bordering the ramps are approximately .84 metres in height. The three surfaces are accessible to pedestrians who decide to follow the ramp to obtain access to the ground level of the 178 th Street entrance. There is no signage or any other indication that use of these surfaces for walking is prohibited or restricted in any way.

An engineer engaged by Hache expressed the opinion that the concrete walls bordering the surfaces on each side of the ramp did not comply with the Alberta Building Code at the time of the accident. [ 4 ] The Mall has applied for

summary dismissal of Hache’s claim.

Summary Judgment [ 5 ] The modern test for

Summary Judgment as established by Hryniak v Mauldin, 2014 SCC 7 , is to determine if a fair and just determination to both parties can be made on the existing record. The Mall has filed two affidavits in support of this application. No questioning has been done on those affidavits. Hache has not filed an affidavit in opposition to the application but has attached to written argument a copy of the above-mentioned engineer’s report. [ 6 ] The first affidavit is from John Colbert the Corporate Controller for the Mall.

Colbert reviewed the Edmonton Police Service Report and the security video (DVD) attached as exhibits to his affidavit. The toxicology report from the hospital and the Mall’s expert report are also attached as exhibits. Colbert expresses his opinion that the entry ramp does not include a pedestrian walkway and is intended solely for vehicle use. He states that based on his investigation, he believes that there has not been a pedestrian incident at the location of this incident since the parkade’s construction 30 years ago.

The Plaintiff does not take issue with the manner in which the evidence of the EPS, the video and the hospital are introduced. He does however note that he is unable to question the Mall’s toxicology expert and is of the view that there are legitimate issues with the analysis. The second affidavit is from Jeff Sheckter the Executive Vice President and COO of the Mall. His responsibilities include construction and planning oversight. He states that the parkade and vehicle ramp were designed and constructed by third party professionals in accordance with standards in place at the time.

In addition he says the Mall has verified there are no outstanding permits or code concerns with the City of Edmonton related to any parkades, ramps or guardrails now or at the relevant time. [ 7 ] The Mall takes exception to the method of introduction of Plaintiff’s expert engineer’s report as it also cannot be tested by questioning. In addition, the opinion expressed is based on the existing Alberta Building Code and it is argued the relevant code is at the time of construction.

Neither party provided the Code as it was when the parkade was built nor could they say how it differed if at all. [ 8 ] It has become trite law that the parties must put their best foot forward on applications for

summary judgment. Although there is a willingness by counsel to allow the Court to overlook requirements for proper evidence for a number of things both quite correctly take exception to the manner in which expert evidence is presented. Discussion [ 9 ] The Mall argues that the incident that occurred was simply not reasonably foreseeable and the evidence does not disclose any negligent act on its part. Finally, it argues that s 7 of the Occupier’s Liability Act absolves them as there is no common duty of care to a visitor in respect of risks willingly accepted by the visitor.

There has never been a pedestrian incident at this location since the lot was constructed approximately 30 years ago. Furthermore the ramp does not include a pedestrian walkway. Finally, the injury sustained was caused entirely by his own careless conduct influenced by excessive consumption of alcohol and impairment. [ 10 ] Hache’s counsel raises the question of the extent of the impairment and reliability of the toxicology results noting that among other things that there was significant blood loss. As noted he wishes to test that evidence.

He observes that the Mall is a world class venue with numerous drinking establishments, a circumstance which is well known to the Mall. The parkade ramps are regularly used by pedestrians to gain access to the street. It is in issue whether the curbing along the concrete walls on the edge of the ramp were designed and constructed with the recognition they may be used as walkways as has in fact arisen.

Whether there are or were building code violations if they are characterized as walkways is unclear at best. [ 11 ] It is disappointing that the Plaintiff has chosen not to question either of the Malls’ witnesses nor file an affidavit in response. It is doubtful it can be said the Plaintiff has put his best foot forward. Having said that it is the Mall’s obligation to put forward a record upon which a determination can be made on the merits.

Hache is not obliged to complete the record. [ 12 ] Although I am told there has never been a pedestrian accident at this location that is not particularly helpful in assessing the duties of the Mall. It would be more relevant to know whether there has been an incident at the Mall where a pedestrian has fallen from a ramp. This may be central to the issue of whether the Mall would be obliged to warn of the risk, and the question of foreseeability in general. [ 13 ] The Plaintiff has a very difficult case ahead of him.

Regardless, on the record before me I am not satisfied I am in a position to make a fair and just determination and conclude that there are no genuine issues requiring trial. Security for Costs [ 14 ] The Mall alternatively seeks security for costs. The Plaintiff resides in New Brunswick and it is not disputed he has no assets in Alberta. Although there is no evidence it is argued that as a result of the Plaintiff’s catastrophic injuries, he must live with his parents and has a limited ability to earn his own livelihood. Consequently, to Order security for costs would restrict the Plaintiff’s access to

justice. Although I have declined to grant

summary dismissal, the Mall has a meritorious defence and it appears the Plaintiff even in his best case is highly susceptible to a finding of contributorily negligent. [ 15 ] Without evidence I am not in a position to conclude that security is unnecessary. Some questioning would be helpful to both parties. Under the circumstances, I am of the view that a proper balance can be struck by ordering payment of security of $5000 and directing the Plaintiff to attend at questioning at his own expense.

After questioning is conducted it is open for the Mall to apply for additional security if it wishes. [ 16 ] The Plaintiff shall have 90 days from the date of these Reasons to pay the $5000 in to Court failing which his action is struck out. In the meantime the action is stayed. Conclusion [ 17 ] The application for

summary dismissal is dismissed. Security for costs are to be posted as set out above. The parties will each bear their own costs of these applications. Dated at the City of Edmonton, Alberta this 7 th day of June, 2017. L.A. Smart M.C.Q.B.A. Appearances: Allan W. Damer Allan W. Damer Professional Corporation for the Plaintiffs Malcolm W. Jones Weir Bowen LLP for the Defendants