Stefanyk v Stevens, 2017 ABQB 402

Court of Queen’s Bench of Alberta Citation: Stefanyk v Stevens, 2017 ABQB 402 Date: 20170626 Docket: 1310 01171 Registry: Red Deer Between: Karran Edith Stefanyk and Her Majesty the Queen of Alberta Plaintiffs - and - Kyle Stevens, Chris Martin, First Capital (Eastview) Corporation, and Sobeys Capital Incorporated Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice J.W. Hopkins _______________________________________________________ Appeal from the Decision by J. T.

Prowse, Master in Chambers Dated the 19 th day of January, 2016 ( Docket: 1310 01171) [ 1 ] This is an appeal of a Master’s decision to dismiss the claims against the Defendant, Sobeys Capital Incorporated (“Sobeys”), a grocery store and tenant, by another Defendant, First Capital (Eastview) Corporation, the owner of the premises and landlord (“Eastview”).

[2] The Plaintiff, Karran Edith Stefanyk, brought claims against the co-defendants, as a result of injuries suffered when she waswalking on the sidewalk in front of the Sobeys store when a large dog lunged at her, and she tripped and fell. [3] The dog in question was tied to something on the sidewalk, perhaps a bike rack.

The Plaintiff alleges that she did not see thedog because of a cluster of bins located on the sidewalk. [4] The remaining co-defendants, Kyle Stevens and Chris Martin, have not defended the action nor did they have notice of thewithin application as they had been previously noted in default. [5] Eastview brings an application for leave to file a Notice to Co-Defendant on the Defendants Sobeys and Stevens and Martin.This will be dealt with separately below. I.

Summary Dismissal The Decision of the Master [6] The Master granted

summary dismissal for Sobeys finding that it was not an “occupier” under the Occupiers’ Liability Act,RSA 2000, ch. O-4 (the “Act”) and did not owe a common law duty of care to the Plaintiff. The Master relied on Koch v Slave LakeJewellers, 2001 ABQB 445, to find it was clear from that decision that Sobeys does not owe a duty of care with respect to the sidewalksimply because customers needed to use the sidewalk for ingress and egress from the Sobeys. Even if a duty of care arose, the Masterfound that Sobeys evidence is that it was not aware of the presence of the dog in question prior to the accident.

There was no evidencethat there was some sort of inspection procedure that Sobeys failed to comply with that would have made it aware of the dog nor is thereany evidence that even if Sobeys had been aware of the presence of the dog that it had authority to tell the person who tied up the dog tountie it and remove it from the sidewalk. As far as negligence is involved, the unchallenged evidence of Sobeys was that it was thelandlord who placed the bins in question on the sidewalk thereby obscuring the view of the dog tied to the bike rack.

The Master foundthat the unchallenged evidence of Sobeys is that it was the landlord who placed the bins in question so as to obscure the view of any dogtied to the bicycle rack. The Master found no evidence that Sobeys was negligent in that regard, and citing Hryniak v Mauldin, 2014SCC 7, dismissed the action on the basis that the likelihood that Sobeys would succeed at trial is very high. Standard of Review [7] The standard of review of Masters’ decisions is correctness and such appeals proceed as hearings de novo (United UtilityWorks Ass’n of Canada v TransAlta Corp., 2004 ABCA 200, at para 20). Rule for

Summary Judgment [8] The principles applicable to

summary judgment under Rule 7.3 were described by Master Schulz in Bavaria Autohaus(1997) Ltd. v Tiffinger, 2017 ABQB 220, at paragraph 15: A.

Summary Dismissal can be granted if a disposition that is fair and just to both parties can be made on the existing record. B.

Summary Dismissal can be granted where there is no merit to the claim. To have merit, there must be a genuine issue of a potentiallydecisive material fact. C. There is no genuine issue requiring a trial when the fair and just process allows for the necessary findings of fact and allows the lawto be applied to the facts in a proportionate, expeditious and less expensive manner that achieves a just result. D.

The key is whether the circumstances require viva voce evidence in order to properly resolve the case, or conversely whether theclaim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily. E. The Respondent must put its best foot forward at the

Summary Dismissal application. (citing, inter alia, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; 776826 Alberta Ltd. v. Ostrowercha, 2015 ABCA 49; Windsorv. Canadian Pacific Railway, 2014 ABCA 108). [9]

Summary judgment is appropriate if the non-moving party’s position is without merit: Alberta Rules of Court, r. 7.3. “Aparty’s position is without merit if the facts and law make the moving party's position unassailable .... A party’s position is unassailableif it is so compelling that the likelihood of success is very high:” Beier v Proper Cat Construction Ltd. (2013), 2013 ABQB 351, 564 A.R. 357 (ABQB) at 374, cited in Can v Calgary Police Service, 2014 ABCA 322 at para 20.

Issues [10] The following issues were presented: 1) Do the claims that Sobeys was an occupier under the Occupiers' Liability Act have merit? 2) Do the claims that Sobeys owed a duty to the plaintiff at common law have merit?

Facts [11] The relationship between Sobeys and Eastview is governed by a lease dated May 13, 1997. Clause 5 of the lease in questiongrants the tenants and its subtenants, customers, invitees and employees the right of such exclusive joint use of all common areas,including an exclusive right and license to use the sidewalk area for promotional marketing and sales and charitable purposes. [12] On July 13, 2012, the Plaintiff visited the Sobeys store. The sidewalk in front of the store is under a large Sobeys canopy,described by Eastview as a marquee.

After exiting the store, and stepping onto the sidewalk, she allegedly fell backwards off thesidewalk due to a large dog lunging at her, resulting in injuries. The dog was tied to a bike rack located on the sidewalk. There is noevidence as to who placed the bike rack there. The Defendant, Chris Martin, was responsible for the dog at the time of the accident andwas inside the store. The Defendant, Kyle Stevens, was the owner of the dog. Sobeys had no knowledge of the dog at the time of theaccident. [13] The bins located on the sidewalk are the property of Eastview and were placed there by Eastview.

Argument [14] Eastview argues that Sobeys was at all times an occupier based on the application of

section 1(c)(ii) of the Act, and basedeither on possession or control of the premises.

The legislation is explicit that there may be more than one occupier of the same premises.Eastview relied on the decision of Kiceluk v Oliviero, 2001 ABQB 704, to argue that rarely will a landlord qualify as an occupier unlessthe landlord exercises “minute-to-minute, hour-by-hour control” over the premises (at para 21, citing Goldmanis v Mador, (BC SC), [1991] BCJ No. 3049 (BCSC) at pp. 28-29). [15] Whether the sidewalk was on the demised premises is not determinative of physical possession, according to Eastview,relying on Bongiardina v York (Regional Municipality), (2000) (ON CA), 49 OR (3d) 641 (ONCA) and Goldmanis,both of which held the store owners to be occupiers of the adjacent sidewalk.

Further, Sobeys exercised responsibility and control overthe premises particularly where the plaintiff is a contractual invitee and the sidewalk was used almost exclusively by its patrons and noalternative path was available. Eastview relied on evidence of the general manager’s questioning on affidavit that Sobeys tends to thesidewalk in the course of business, retrieving shopping carts and attending to panhandlers. The general manager also acknowledged thathe had witnessed dogs tied in this area in the past. [16] Eastview argued that Sobeys owed a common law duty of care to the Plaintiff.

Where special circumstances create an unusualrisk, a common law duty may arise. Eastview argues that the presence of dogs creates a special circumstance such that a common lawduty of care may apply. [17] Sobeys argues that the lease clearly defines sidewalks as a common area, and Eastview is responsible for the maintenance andcare of the sidewalk. Sobeys did not have responsibility for the condition of the sidewalk, the activities on the sidewalk, nor did theyhave the ability to restrict or permit access to the sidewalk.

Sobeys argues it does not meet either definition of “occupier” under the Act. [18] Sobeys argues that there is no common law duty of care, as they did not place the bins located on the sidewalk, and they hadno knowledge of the dog on the sidewalk. [19] Sobeys argued extensively that the Master properly distinguished the cases in his decision. Analysis [20] The Master relied to a great extent on the decision in Koch to find that Sobeys did not owe a duty either under the Act or atcommon law and therefore that the claims had no merit.

The decision cited paragraphs 17-23, which in turn relied upon the decisions ofChong v Flynn, 1998 ABQB 812 , [1998] AJ No. 1094 (ABQB) and Edgar v Canadian Imperial Bank of Commerce, (1977) 6AR 104 (NWTCA). 1) Do the claims that Sobeys was an occupier under the Occupiers' Liability Acthave merit? [21] The relevant provision of the Occupiers’ Liability Act is as follows: 1 (c) “occupier” means (

i) a person who is in physical possession of premises, or (ii) a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises andthe persons allowed to enter those premises, and for the purposes of this Act, there may be more than one occupier of the same premises.

[22] In Kiceluk, the tenant and not the landlord was found to have been capable of exercising possession or control. The reasoningof the decision is found at paragraphs 21-23: 21 The fact that a landlord is generally not considered to be an occupier in terms of the Act is well established. I am in agreement, andadopt the

interpretation of who is an occupier under the Alberta Act, with the law as stated by Madam Justice Prowse in Goldmanis vMador, (BC SC), [1991] B.C.J. No. 3049 (B.C. S.C.) where she was called upon to interpret the provisions of theBritish Columbia Occupiers’ Liability Act, R.S.B.C. 1979 c.303. It defines “occupier” in the very same terms as the Alberta Act. At pp.28-9 Prowse, J. states: Physical possession connotes an actual physical presence on the property, as opposed to mere ownership of the property.

In this case, Mr.Azai, on behalf of 531 was a physical presence on the property, but only on an occasional basis. He stated that he tried to get there onceevery three or four weeks, and there was also evidence that he attended to do repairs or to answer complaints on an "as needed" basis. Iam not persuaded, on balance, that this occasional physical presence on the premises is sufficient to place 531 in physical possession ofthe premises within the meaning of

section 1(

a) of the Act, so as to make it an occupier of the premises. I am also unable to conclude that the landlord is an occupier of the premises under

section 1(

b) of the Act. Mr. Justice Spencer, inHodgson v Christensen and Hodgson, [1989] B.C.J. No. 2322, Vancouver Reg. No. C896385, December 19, 1989, held that all of therequirements of

section 3(

b) must be read conjunctively in order to determine whether a party is an occupier. In that case, the landlord ofpremises was found not to be an occupier, since he did not have “minute-to-minute, hour-to-hour control” over rental premises. In thiscase, not only did 531 not have day-to-day control over the premises, but it also did not have control over the persons allowed to enter thepremises. 22 In Cavalier v Pope, [1906] A.C. 428 (U.K. H.L.) Lord Atkinson also discussed the elements of possession and control that pertainto a landlord and tenant situation.

He stated at pp. 433-4: In Miller v Hancock ([1893] 2 Q.B. 177) and Hargroves, Aronson & Co. v Hartopp ([1905] 1 K.B. 472) the landlord was held liablebecause control was retained by him; but the power of control necessary to raise the duty, for a breach of which damages were recoveredin the several cases to which we have been referred, implies something more than the right or liability to repair the premises. It impliesthe power and the right to admit people to the premises and to exclude people from them.

But this power and this right belong to thetenant, not to the landlord, and the latter's contract to repair cannot transfer them to him. The existence of such an agreement may entitlea landlord to demand from his tenant admission to the premises for the servants and workmen required to carry out his contract, butnothing in the shape of control 23 I accept and adopt the reasoning above and find that for a landlord to have the possession and control contemplated in the Act,there must be a power to admit and exclude people from the premises.

A general obligation to keep the premises maintained or todemand periodic entry is not enough to infer that one has the degree of possession and control required to be considered an occupierunder the Act. [23] In my view, the rationale that in order for the landlord to have possession and control of the premises it must have the powerto permit and exclude people found in Kiceluk is persuasive. On the present facts, it was the tenant and not the landlord that had thepower to admit and exclude patrons.

While the Master attempted to distinguish the authority based on the particular provisions of thelease, in my view the Kiceluk case stands for a broader proposition of law and cannot be so easily displaced. [24] In my opinion, the argument that Sobeys is the occupier under the Act has merit. 2) Do the claims that Sobeys owed a duty to the plaintiff at common law havemerit? [25] Our Court of Appeal in Kluane v Chasse, 2003 ABCA 30, adopted the statements of the Ontario Court of Appeal inBongiardina v.

York (Regional Municipality) (2000), (ON CA), 49 OR (3d) 641, at paras 19-21: 19 The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalksadjacent to the property? In my view, the answer to this question must be ‘No’. Although the ‘neighbour’ principle from McAlister(Donoghue) v Stevenson, (FOREP), [1932] A.C. 562 (U.K. H.L.), has been expanded in recent years to cover a myriadof new relationships, it would stretch it too far if it was applied in the circumstances of this case.

A homeowner has a duty to ensure thathis or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeownercomplies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets andsidewalks. The snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legalresponsibility of the municipality, not the adjacent property owner. 20 There are two exceptions to this general principle.

First, a property owner may be deemed in law to be an occupier of adjacentpublic property if the owner assumes control of that property. Thus, in Bogoroch v Toronto (City) (June 20, 1991), Doc. 323847/88 (Ont.Gen. Div.), the court held that a store owner who used the adjacent sidewalk to display its wares on a continuing basis was an occupier ofthe sidewalk and subject to the duties imposed by the Occupiers' Liability Act. Similarly, in Moody v Toronto (City) (1996), (ON SC), 31 O.R. (3d) 53 (Ont. Gen. Div.), the court held, on a motion for

summary judgment, that the owners of theSkydome in Toronto might be an occupier of the public walkways adjacent to the stadium because of the ‘special circumstances’ relatingto those walkways, including the almost exclusive use of the walkway by Skydome patrons and the lack of alternatives to the walkways. 21 The second exception to the general principle that a property owner is responsible only for his or her property is that the duty ofcare on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to

persons nearby. An example of a case in this category would be Brazzoni v Timmins (City) (February 7, 1992), Doc. CA 685/88 (Ont.C.A.), where the court held both the City of Timmins and the Toronto-Dominion Bank liable for injuries suffered by a person who fellon snow and ice on a public sidewalk near the bank. Referring to the bank’s liability, the court said, at p.2: [T]he trial judge found that water flowed from the respondent's property across the sidewalk at the time the plaintiff fell.

By allowing thewater from melting snow, on the roof of its building and from its parking lot, to accumulate on its property and to run across the sidewalkwhich was covered with snow and ice, the respondent, in our opinion, created a dangerous condition that it knew or ought to have knowncould cause injury to pedestrians using the sidewalk. Regardless of whether liability is based on nuisance or negligence, the respondent,in our opinion, is liable. See also Taylor v Robinson, (ON CA), [1933] 3 D.L.R. 73 (Ont.

C.A.). [26] In my view, there is merit to the argument that “special circumstances” exist to establish a common law duty of care onSobeys. Patrons of Sobeys had almost exclusive use of the sidewalk and the activities of dog owning patrons of the store may flow ontothe sidewalk and create a hazard. I find that the reasoning in Kluane applies. [27] In my opinion, there is merit to the claim that Sobeys owes a duty of care to the Plaintiff. Conclusion on

Summary Dismissal [28] It is my finding that based on a fresh review of the evidence there is merit to the argument that Sobeys is liable both under theAct and at common law. To dismiss the claims, it was necessary for Sobeys to demonstrate that based on the existing record theirdefence was so compelling that the likelihood of success is so high that it should be determined summarily. In my view, that is not thecase and it is necessary for there to be viva voce evidence to determine the question of liability. [29] The onus for

summary dismissal of the claims against Sobeys has not been satisfied. The decision of the Master is thereforevacated, and the appeal is allowed and the application for

summary judgment is dismissed. II. Leave to File Notice to Co-Defendant [30] Eastview brings an application for leave to file a Notice to Co-Defendant on the Defendants Sobeys and Kyle Stevens andChris Martin. Under the Rules of Court, a Notice to Co-Defendant should be filed and served within 20 days of a Co-Defendant filing aStatement of Defence or Demand for Notice (Rule 3.43).

Similarly, a Third Party Notice should be filed within six months of the filingof a Statement of Defence (Rule 3.45). [31] Sobeys and Eastview entered into a tolling agreement on January 11, 2016, fourteen months from the end of the filing periodfor a Third Party Claim expired on November 23, 2014. [32] In the case of Stevens and Martin, both have been noted in default by the Plaintiff on March 13, 2015 for failure to file astatement of claim.

A third party claim must be filed before judgment is entered against the defendant or the defendant is noted in default(Rule 3.45(c)(ii)). [33] The application for leave to file the Notice to Co-Defendant and Third Party Notice was unopposed by Sobeys. [34] The applicable law is summarized in Arcelormittal Tubular Products Roman S.A. v Canadian Natural Resources Ltd., 2013ABQB 578, provided by counsel for Eastview: 497 Rule 3.45 requires a third party claim to be filed and served within six months of the filing of the statement of defence.

This timemay be extended after the consideration of the following three factors: (1) the length of delay; (2) the reason for the delay; and (3) theprejudice to the third party: Alliance Pipeline at para 10 citing Flight v Dillon, 2001 ABQB 211, 284 A.R. 117 (Alta. Q.B.) [Flight];Dean; and Builders Holdings Ltd. v Gasland Properties Ltd., 2001 ABQB 823, 306 A.R. 163 (Alta. Q.B.). 498 The requirement to explain the delay is mandatory: Mangat v Allen, 2010 ABQB 264 (Alta.

Master) at para 10. 499 When the delay is relatively short, more weight is given to the existence of prejudice resulting from the delay and less to thelength of delay. As the length of the delay becomes longer, more weight is given to the reason for the delay and less to the existence ofprejudice: Spartek Systems Inc. v Brown, 2009 ABQB 705 (Alta. Q.B.) at para 14, (2009), 481 A.R. 213 (Alta. Q.B.) [Spartek]; Flight;Dean; Alliance Pipeline at para 10.

A delay of approximately 10-14 months is considered relatively short: Alliance Pipeline at para 11.When the delay is longer, the defendant seeking the extension must give evidence explaining the delay. Evidence explaining the delaywas required in Lister v Calgary (City) (1997), (AB CA), 193 A.R. 218 (Alta. C.A.) where the delay was 4.5 years:para 20. Leave will be denied if the delay is long and no evidence is provided to explain it. In Hein v Barrett, 2008 ABQB 548 (Alta.Master), leave was refused where an insufficient explanation was given for a seven-year delay.

The pace of the litigation is anotherfactor to be considered in weighing the three factors: Spartek at para 14. 500 The viability of the proposed third party claim will be considered when determining whether an extension of time to file the thirdparty claim should be granted. The claim must have an "air of reality": Labell v R. Jo Enterprises Ltd. (1990), 1990 ABCA 147, 105 A.R. 319 (Alta. C.A.) at para. 4. [35] I am satisfied that the delay of fourteen months in relation to Sobeys was not unreasonable.

The reason provided, that theprevious solicitors for Eastview decided not to file a claim in order to avoid a conflict of interest, in my view, is a satisfactory reason forthe delay, particularly as the error of the solicitor should not be visited on the client and the present counsel acted diligently to correct it.

I am satisfied that no prejudice has been suffered by Sobeys, as it has been engaged as a Defendant in this action all along and was aware of the contractual indemnity provisions that Eastview has stated that it intends to rely upon. [ 36 ] As this application was unopposed by Sobeys, I have no difficulty granting leave to file a notice to co-defendant and third party notice against Sobeys and it is so granted. [ 37 ] The circumstances relating to Sobeys are different from Kyle Stevens and Chris Martin. [ 38 ] The application for leave to file a late notice to co-defendant and third-party notice on Stevens and Martin presents me with greater difficulty.

The delay of twenty five months since the filing of a noting in default is considerably longer than the delay suffered by Sobeys. While Eastview provides authority that such a “delay is not commendable, but it is not gross” ( Calgary Mack Sales Ltd. v Shaw , 2005 ABCA 304 at para 24 ), the longer the delay the more significance is placed on the reason for delay than the potential prejudice suffered ( Arcelormittal , at para 499, above ). No reason was given for the failure to provide a third-party notice against the co-defendants Stevens and Martin.

Further, the prejudice is significant as neither Stevens nor Martin has taken an active

part in the proceedings. [ 39 ] I am particularly concerned with the ex parte nature of these proceedings against Stevens and Martin. While representations were made that service of the statement of claim was provided by publication, I am of the view that this application ought to have been served either personally or substitutionally on both Stevens and Martin if Eastview intends to actively pursue a third party defence based on contribution and indemnity.

Stevens and Martin should be provided with effective notice in order that they may defend this action. [ 40 ] Accordingly, the application as against the co-defendants Stevens and Martin is denied. That being said, I grant Eastview leave to re-apply to name Stevens and Martins in a notice to co-defendant and third party in the action. Eastview will be required to provide effective service on both parties. III. Conclusion [ 41 ] An Order is granted accordingly. The parties may speak to costs if they are unable to agree. Heard on the 2 nd day of May, 2017.

Dated at the City of Red Deer, Alberta this 26 th day of June, 2017. J.W. Hopkins J.C.Q.B.A. Appearances: James Dixon, QC – Dixon & Associates for the Plaintiff, Karren Edith Stefanyk Andrew MacGregor – Dentons Canada LLP for the Defendant, First Capital (Eastview) Corporation Nabeel S. Peermohamed – Brownlee LLP for the Defendant, Sobeys Capital Incorporated