Ellis v City of Lethbridge, 2020 ABQB 783

Court of Queen’s Bench of Alberta Citation: Ellis v City of Lethbridge, 2020 ABQB 783 Date: 20201215 Docket: 1906 00787 Registry: Lethbridge Between: Leanne Wehlage Ellis Appellant - and - City of Lethbridge Respondent _______________________________________________________ Decision of the Honourable Mr. Justice S.N.

Mandziuk _______________________________________________________ Introduction [ 1 ] Leanne Wehlage Ellis, the Appellant, appeals the decision of Judge LeGrandeur of the Provincial Court of Alberta dismissing her claim against the Respondent City of Lethbridge: Ellis v Lethbridge (City) , 2019 ABPC 276 (the “Trial Decision”). [ 2 ] On June 24, 2017, the Appellant attended a beer garden event held in conjunction with a Dragon Boat Festival (the “Festival”) at Henderson Lake Park in Lethbridge, Alberta. Henderson Lake Park is operated by the Respondent municipality.

[3] The Appellant and her husband were participants in the Festival. The Appellant went to buy refreshments at a pizza kiosk onthe festival grounds. While returning to the table that she and her husband had been sitting at she stepped into an in-ground sprinkler,twisting her foot. This resulted in a major sprain and a broken bone. The sprinkler head in question was unmarked and difficult to see; theevidence at trial was that it could only be seen if one stood directly over it. [4] As a result, the Appellant had to wear a cast full-time for six weeks and then part-time for a further two weeks.

She requiredphysiotherapy treatment. Her injuries endured for approximately five or six months. [5] Henderson Lake Park hosts events with high volumes of attendees between May and September during a normal year. Duringthis time period, a crew working for the Respondent is tasked, in part, with checking and raising sprinkler heads. However, the evidencesubmitted at trial showed there were too many sprinkler heads to check individually on a regular basis – about 1800-2000 in HendersonPark - and instead the crew’s practice was to observe them generally in the regular course of their duties.

There were service standards inplace requiring the irrigation crew to address issues with sunken sprinkler heads. The crew met daily and were told to watch for sunkensprinkler heads. The process for identification and repair was addressed in their orientation sessions. [6] Despite the high volume of foot traffic for the Dragon Boat Festival, resulting in increased risk of injury from sunkensprinkler heads, no additional precautions were taken by the Respondent. [7] The nature and extent of the Appellant’s injuries are not in issue.

The Respondent’s responsibility for Henderson LakePark’s condition and upkeep is not disputed. The parties agreed on the damages payable prior to trial. [8] The sole question at trial was whether or not the Respondent is liable to the Appellant for the Appellant’s injuries. Findings of the Trial Judge [9] The trial took place on March 15, 2019.

At trial, the Respondent denied negligence, arguing that no duty of care was owed tothe Appellant; that the Appellant willingly accepted the risk of accident under s. 7 of the Occupier’s Liability Act, RSA 2000, c O-4[OLA]; that she was contributorily negligent under the Contributory Negligence Act, RSA 2000, c C-27; and that the Respondent wasprotected from liability for damage caused by its system of inspection and maintenance by the operation of s. 530 of the MunicipalGovernment Act, RSA 2000, c M-26 [MGA]. [10] As an occupier under the OLA, the Respondent had a positive duty to address potential dangers on the premises.

TheRespondent was aware that sinking sprinkler heads were potential hazards. It was also aware that the risk increased during events such asthe Festival because of the number of people in attendance. The Trial Judge concluded that the Respondent failed to take additional stepsto ensure that the premises were reasonably safe. He did not find that the Appellant had willingly accepted the risk of injury occurring atHenderson Lake Park; therefore, s. 7 of the OLA did not apply.

The evidence did not establish that she was aware of the risk or that shehad expressly or impliedly waived a right of action for injury suffered on the premises. Additionally, she had not waived any right underthe OLA to claim compensation from the Respondent in the event of injury. [11] Furthermore, Judge LeGrandeur declined to find the Appellant contributorily negligent. There was no evidence that she oughtto have expected the hazard in question or that she failed to exercise ordinary diligence. [12] Judge LeGrandeur considered whether the inspection process was an operational decision or a policy decision.

If the processarose from a policy decision, the Respondent is statutorily protected from liability.

He considered Just v British Columbia, , [1989] 2 SCR 1228 [Just] and found that this analysis was inapplicable as liability was established under the OLA statutory schemeand not under the common law, adopting the Ontario Court of Appeal’s decision in Kennedy v Waterloo (County) Board of Education,, 45 OR (3d) 1 (Ont CA), leave to appeal refused (2000), [1999] SCCA No 399. [13] This brings us to the legal issue that lies at the heart of this appeal. [14] Judge LeGrandeur considered the effect of s. 530 of the MGA, noting at para. 50 of the Trial Decision that this provisionfunctions as a statutory exemption to “any liability for damages arising in the context set out in s 530.” He found at para 53 that the issuerelated to the “matter of inspection and maintenance”: the Respondent failed to adjust its inspection procedure in light of the increasedrisk posed by high attendance on the premises. [15] In addressing the ostensible conflict between the blanket exclusion of liability afforded to municipalities by s. 530 MGA andthe duty imposed by s. 5 of the OLA, Judge LeGrandeur relied on two presumptions identified in Lévis (City) v Fraternité des Policiersde Lévis, 2007 SCC 14 [Lévis]para. 58:“the more recent law prevails over the earlier law and that the special law prevails over thegeneral.” Both presumptions favour the

interpretation that s. 530 MGA prevails over s. 5 OLA. [16] Therefore, notwithstanding a finding that the Respondent was negligent under s 5 OLA, s 530 MGA gives the Respondentimmunity. Positions of the Parties and Issues [17] The Appellant argues that Judge LeGrandeur erred in his

interpretation of the MGA by finding that s 530 of the MGAprecludes the Respondent’s liability despite the Respondent’s negligence.

Section 530 is limited to situations where the efficacy ofsystems of inspection and maintenance is in question. Sections 527.2 and 532 MGA establish alternative, independent sources of liabilitythat operate notwithstanding s 530 MGA. [18] The Respondent’s position is that the Appellant is raising new issues on appeal. Despite the Appellant’s awareness of the

Respondent’s reliance on s 530 MGA , neither s 527.2 nor s 532 MGA were argued at trial. Otherwise, the Respondent maintains the position it took at trial. [ 19 ] The Appellant’s argument raises the following issues: (

a) Has the Appellant advanced arguments regarding ss. 527.2 and 532 MGA that were not before the Trial Judge. If the Appellant has advanced new arguments, should they be heard on appeal? (

b) Does s. 530 MGA provide the Municipality with immunity? Standard of Review [ 20 ] This is an appeal on the record of a Provincial Court decision. [ 21 ] The parties agree that this appeal concerns a pure question of law. The standard of review is correctness: Housen v Nikolaisen , 2002 SCC 33 [ Housen ] ; R v Sehn , 2005 ABCA 203 ; Super Save Disposal (Alberta) Ltd v Shenwei Enterprises Ltd , 2017 ABQB 805 (at para. 3 ); Tucker v Edmonton (City) , 2011 ABQB 55 (at para. 9 ). On a standard of correctness, “an appellate court is free to replace the opinion of the trial judge with his own” ( Housen at para. 8 ).

Discussion Has the Appellant advanced arguments that were not before the Trial Judge? [ 22 ] The Appellant did not argue at trial that ss 527.2 and 532 MGA establish independent bases for the Respondent’s liability that operate notwithstanding s 530 MGA . [ 23 ] The statutory provisions germane to this appeal read as follows: Acting in accordance with statutory authority 527.2 Subject to this and any other enactment , a municipality is not liable for damage caused by any thing done or not done by the municipality in accordance with the authority of this or any other enactment unless the cause of action is negligence or any other tort .s. … [Emphasis added] Inspections and maintenance 530(1) A municipality is not liable for damage caused by (

a) a system of inspection, or the manner in which inspections are to be performed, or the frequency, infrequency or absence of inspections, and (

b) a system of maintenance or the manner in which maintenance is to be performed, or the frequency, infrequency or absence of maintenance. … Repair of roads, public places and public works 532(1) Every road or other public place that is subject to the direction, control and management of the municipality, including all public works in, on or above the roads or public place put there by the municipality or by any other person with the permission of the municipality, must be kept in a reasonable state of repair by the municipality, having regard to (

a) the character of the road, public place or public work, and (

b) the area of the municipality in which it is located.

(2) The municipality is liable for damage caused by the municipality failing to perform its duty under subsection (1).

(3) This

section does not apply to any road made or laid out by a private person or any work made or done on a road or place by a private person until the road or work is subject to the direction, control and management of the municipality.

(4) A municipality is not liable under this

section unless the claimant has suffered by reason of the default of the municipality a particular loss or damage beyond what is suffered by the claimant in common with all other persons affected by the state of repair.

(5) A municipality is not liable under this

section in respect of acts done or omitted to be done by persons exercising powers or authorities conferred on them by law, and over which the municipality has no control, if the municipality is not a party to those acts or omissions.

(6) A municipality is liable under this

section only if the municipality knew or should have known of the state of repair.

(7) A municipality is not liable under this

section if the municipality proves that it took reasonable steps to prevent the disrepair fromarising.

(8) When a traffic control device has been defaced, removed or destroyed by someone other than a designated officer or employee oragent of the municipality, the municipality is liable under this

section only if the municipality (

a) had actual notice of the defacement, removal or destruction, and (

b) failed to restore, repair or replace the traffic control device in a reasonable period of time.

(9) A person who brings an action under this

section must notify the municipality of the event that gives rise to the action within 30 daysafter the occurrence of the event.

(10) Failure to notify the municipality bars the action unless (

a) there is a reasonable excuse for the lack of notice, and the municipality is not prejudiced by the lack of notice, (

b) death is the result of the event complained of, or (

c) the municipality waives in writing the requirement for notice.[Emphasis added] [24] The general rule is that new issues should not be raised on appeal: SS “Tordenskjold” v SS “Euphemia”, (SCC), 41 SCR 154 at 164-65; Lamb v Kincaid, (SCC), 38 SCR 516 at 539, Athey v Leonati, (SCC)at para. 51, [1996] SCR 458. [25] This rule promotes finality and certainty. Permitting new issues to be raised on appeal risks the overturning of judgments thatwere otherwise correctly decided by the court below.

As stated by the Manitoba Court of Appeal: “[i]f an issue is not raised in the firstinstance, it is difficult for an appellant to argue that the decision-maker committed an error on that issue” (Harder v Manitoba PublicInsurance Corp, 2012 MBCA 101 at para. 12). Furthermore, this general rule reinforces the idea that each party is responsible for howit chooses to present its case.

Allowing an unsuccessful party to “patch up weak parts of the case by raising new arguments or issues”allows it to essentially relitigate the dispute (Kavanagh v Newfoundland (Minister of Education), 2000 NFCA 2 at para. 14). [26] The Respondent cites Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 [Rex], where the Supreme Court of Canadadeclined to answer a constitutional question. This decision was based in part on the fact that the argument was novel, finding that newevidence would necessarily need to be adduced, and that the factual record was insufficient to resolve the matter (at paras 58-59).

TheRespondent also relies on Legacy Inc v Red Deer (City), 2018 ABCA 393 [Legacy Inc] where it was held that new issues may not beraised on appeal because failing to present these issues at earlier stages of litigation may limit the appeal court’s ability to decide thematter. These limitations include an incomplete factual record, the inability of the original adjudicator to turn their mind to the issue, andthe potential prejudice experienced by the other party who may have otherwise supplemented the record (at paras 77-78). [27] However, this general rule is subject to exceptions.

The Alberta Court of Appeal in Dow Chemical Canada ULC v NOVAChemicals Corporation, 2020 ABCA 320 provides an excellent

summary of the law (at paras 63-64): The test for allowing a new issue to be argued on appeal has been stated in several ways. There are always considerations of fairness tothe litigants and the overall justice of the outcome: Quan v Cusson, 2009 SCC 62 at para. 37, [2009] 3 SCR 712; PerformanceIndustries Ltd. v Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para. 33, [2002] 1 SCR 678. Appellants should be allowed toadvance their causes of action, but Respondents must also have a fair opportunity to defend.

Limiting the litigants to the contents of theirpleadings and the arguments made at trial promotes judicial economy and finality of outcomes. An important issue is whether the evidentiary record is sufficient to decide the new issue, and specifically whether additional evidencewould have been put on the record if the new issue had been raised. As stated in Athey v Leonati, (SCC), [1996] 3 SCR458 at p. 479: . . .

Given that the appellant’s arguments raised an issue of law which did not require any further evidence (or indeed any further findingsof fact) and which would not have caused any prejudice to the respondents, it was an error for the Court of Appeal to refuse to considerthe argument.

Some cases, for example 681210 Alberta Ltd (cob Okotoks Cinemas) v Hunter, 2012 ABCA 83, 522 AR 109, 60 Alta LR (5th) 204,imply that the completeness of the record must be proven “beyond doubt”, but it is now well established that the only standard of proofin civil cases is a balance of probabilities: F.H. v McDougall, 2008 SCC 53 at para. 40, [2008] 3 SCR 41.

The better way to state the testis whether the new issue is “manageable on the evidentiary record and raise[s] important issues of law and equity”: PerformanceIndustries Ltd. v Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para. 33, [2002] 1 SCR 678. [28] These considerations are effectively a mirror of those described in Legacy Inc, and will be discussed in turn, beginning withan analysis of the factual record. Is There a Complete and Sufficient Factual Record? [29] As noted above, the standard of review for this appeal is correctness. The facts as found by the trial judge are not to bedisturbed.

All that is being considered is whether the law was correctly applied.

[30] I am satisfied that there is a complete factual record sufficient to consider the application of s 527.2 MGA. Judge LeGrandeurconcluded that the Respondent was negligent, which satisfies the application of the provision. The issue is one of

interpretation todetermine whether liability can be established in the face of s 530 MGA. [31] Turning to s 532 MGA, the Appellant argues in her written submissions that the Trial Judge made several findings of factwhich could be applied to establish the application of that provision: the potential to fall and suffer damage and loss at the venue was a“known risk”; the Respondent’s failure to make the area reasonably safe for individuals visiting in the unique circumstances of theevent; and that the hazard could have been avoided if at minimum the sprinklers were clearly marked. [32] However, while Judge LeGrandeur considered whether the Respondent was negligent and whether the area was reasonablysafe, s. 532 MGA instead asks if the “public place” under the “direction, control and management of the municipality” is “kept in areasonable state of repair”.

Because of this discrepancy, the Respondent argues that new evidence would have been required at trial toestablish whether s 532 MGA applies. [33] It may be possible to infer that there is a sufficient factual record to meet the requirements to establish liability under s. 532MGA. However, I am convinced on a balance of probabilities that further evidence is required to decide this issue. [34] A complete factual record exists to establish some aspects of s. 532 MGA. I have no difficulty concluding that HendersonLake Park was a public place under the direction, control and management of the municipality.

At trial the Respondent conceded that themunicipality was an occupier. According to the OLA an “occupier” is a “a person who has responsibility for, and control over, thecondition of premises, the activities conducted on those premises and the persons allowed to enter those premises”. Henderson Lake Parkwas under the “direction, control and management of the municipality.” [35] While the Respondent posits that the sprinklers do not amount to public works, Judge LeGrandeur considered the premisesmore broadly, considering Henderson Lake Park and the beer garden.

While the hazard was created by the sinking sprinklers, it was asan occupier of the park itself that underlies liability. [36] The Court in Housen relied on Partridge v Langenburg (Rural Municipality), (Sask CA), [1929] 3 WWR555 at 558-59 [Partridge] (see also Lemna v Calgary (City), 2009 ABQB 478 at paras 54-55, which adopted this definition) to establishthat the standard of care to maintain a “reasonable state of repair” means: [T]hose requiring to use it may, exercising ordinary care, travel upon it with safety.

What is a reasonable state of repair is a question offact, depending on all the circumstances; “repair” is a relative term, and hence the facts in one case afford no fixed rule by which todetermine another case where the facts are differed… [Emphasis added] [37] It is unclear if further evidence is required to establish whether the property was kept “in a reasonable state of repair.” Whilethe Trial Judge identified a heightened need for inspection leading up to the Festival to account for the increased risk of injury, it isuncertain that this conclusion was reached by way of a review of the “character of the…public place or public work” and “the area of themunicipality in which it is located”.

Furthermore, this analysis depends on “all the circumstances”, indicating the expansive scope ofevidence that may be required. Had these questions been before Judge LeGrandeur, more evidence may have affected the result. [38] Furthermore, no evidence has been tendered establishing how a person exercising ordinary care would conduct themselves(Housen at paras 39-40).

While Judge LeGrandeur declined to find that the Appellant was contributorily negligent, more evidence wouldbe required to resolve this question. [39] Even if it was found that there is a sufficient evidentiary record to establish all of the above, no evidence was put before JudgeLeGrandeur regarding the knowledge requirements in s. 532(6) MGA: S 532 requires the Appellant to establish that the municipality hadexplicit or constructive knowledge of the state of repair. This knowledge is considered from the perspective of a “prudent municipalcouncillor” (Housen at para. 63).

While the trial judge held that the Respondent was aware that the sprinklers constituted a “knownrisk”, I am not convinced there is enough evidence to establish that a prudent municipal councillor would have knowledge of the state ofrepair. This question was not before Judge LeGrandeur.

Is the Appellant Raising a New Issue on Appeal? [40] In the context of new issues being raised by an appellate court as opposed to the parties, Rothstein J in R v Mian, 2014 SCC54 defined “new issue” as follows (at paras 30 and 33): Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties (see Quan v. Cusson, 2009 SCC62, [2009] 3 S.C.R. 712, at para. 39) and cannot reasonably be said to stem from the issues as framed by the parties. … Second, issues that are rooted in or are components of an existing issue are also not “new issues”.

Appellate courts may draw counsel’sattention to issues that must be addressed in order to properly analyze the issues raised by the parties. For example, in a case involving aclaim of self-defence, the parties may argue exclusively over whether the accused’s belief that his life was in danger was reasonable, butit may be necessary for the court to first analyze the issue of whether the accused subjectively believed that he was at risk of death. Thisis not a “new issue”, but a component of the overall analysis of the grounds as raised by the parties.

However, where appropriate, thecourt may have to be prepared to grant even a brief adjournment to allow the parties to consider and canvass the issue. [41] Altering an existing argument or making additional submissions on an existing issue does not necessarily equate to raising anentirely new issue (Smith v St Albert (City), 2014 ABCA 76 at para. 18; 885704 Alberta Ltd v Oxford Properties Group Inc, 2005

ABCA 274 at para. 23; R v Sweeney, (ONCA), 50 OR (3d) 321 at paras 32-34). [42] Having failed to rebut the s. 530 MGA defence at trial, the Appellant is attempting to invoke liability under the independentsources of liability in ss. 527.2 and 530 MGA. In my view, only s. 532 MGA raises new issues on appeal. [43] While both provisions are legally distinct in the sense that neither statutory provision was explicitly mentioned at trial, s.527.2 MGA only requires a finding of negligence; the form of the municipality’s negligence is irrelevant.

The application of s. 527.2MGA is merely a component of the finding of negligence under the OLA. Having established that a municipality was negligent, thecriteria for s. 527.2 MGA to apply are met and the legal issue is essentially identical. Furthermore, for these reasons, the application of s.527.2 MGA is not factually distinct. [44] Conversely, the s. 532 MGA analysis is legally and factually distinct. While the issue relates to liability in negligence, howthis negligence is established differs between the OLA and s. 532 MGA.

Different legal tests must be satisfied to establish different dutiesof care with different evidentiary considerations. Housen, considering s. 192 of the Rural Municipalities Act, SS 1989, c R-26.1, aprovision similar to s. 532 MGA, held that maintaining a reasonable state of repair is the statutory standard of care owed by aMunicipality (at para. 38 citing Partridge at paras 10-12. And see Steele v Burgos 2010 ABQB 327 at para. 147). [45] Additionally, s. 532 MGA considers separate exclusions from liability.

Section 532(6) MGA provides complete protectionfrom negligence for a municipality unless it “knew or should have known of the state of repair” from the perspective of a prudentmunicipal councillor. Therefore, both the test to establish whether s. 532 MGA applies, as well as potential defences contained within s.532(6) MGA are entirely new issues. [46] While the Appellant has attempted to argue that s. 532 MGA was raised at trial by pointing out the s. 532(9) noticerequirement was complied with, the presence or absence of notice is not determinative of the real question.

The substantive issue is notbootstrapped by the formal requirement. Instead, lack of notice could speak to prejudice. Regardless, there is no indication before methat this notice was given in contemplation of s. 532(9). The Appellant did not argue that the other requirements of s. 532 were met atany time during trial. Would Allowing the New Issue(

s) Result in Prejudice to the Parties? [47] As discussed above, I do not find that the evidentiary record is complete.

In order to meet the case before it, the Respondentwould need the opportunity to lead further evidence. [48] In particular, finding that simply because the Respondent was aware of the potential risk posed by increased attendance, itknew or ought to have known of the state of repair from the perspective of a prudent municipal councillor, failing to permit theRespondent to submit evidence to the contrary, would result in substantial unfairness. [49] Therefore, the application of s. 532 MGA will not be considered in this appeal.

Does the MGA provide the Municipality with Immunity? [50] The Trial Judge found that the Respondent was negligent but s 530 MGA provides immunity. The Appellant argues that if s.527.2 MGA applies, it establishes liability separately from s. 530 MGA. [51] Clearly, s. 527.2 MGA applies, as the negligence of the Municipality is not being appealed. [52] However, the scope of s. 530 MGA must be analyzed to establish whether s. 527.2 MGA can assist the Appellant. The Law [53] The extent of s. 530 MGA’s protections are unclear. [54] The

interpretation advanced by the Appellant is that in cases of negligence s. 527.2 MGA operates as an exception to s. 530MGA. The Respondent argues that s. 530 MGA acts as a complete defense to liability resulting from systems of inspection ormaintenance even where there is negligence. [55] The effect of s 530 MGA on the rest of the MGA have received little judicial consideration.

Jedynak v Wheatland (Countyof), 2006 ABQB 500 identified, without deciding, the uncertainty around whether a municipality can rely on the statutory defenses of ss.529 and 530 MGA despite the presence of negligence. [56] The Appellant’s counsel relied heavily in his written materials on Hussain v Edmonton (City of), 2004 ABQB 204 [Hussain],which he argues stands for the proposition that a finding of negligence defeats the application of s. 530 MGA. In Hussain, a young manwas using exercise equipment at the Londonderry Recreation Centre, which was owned by the City of Edmonton.

A cable snappedwhile he was exercising, causing injuries. [57] With respect, I am unable to see how this case supports the Appellant’s position. While there was a system of maintenanceand inspection in place in Hussain for the equipment, that was not relevant to the analysis. The issue was not whether the system ofmaintenance or inspection was inadequate, as the deficiency would not have been uncovered in any case. Instead, the issue was whetherthe failure was caused by inadequate materials (at para. 23).

In fact, Justice Veit states plainly at para. 5 “[t]he negligence of the City isnot a failure of either inspection or maintenance; those are the only types of negligence from which the City is shielded by s 530. . .[t]hatstatute simply has no application here.”

[58] In fact, Hussain is potentially damaging to the Appellant’s case. In obiter, Justice Veit notes (at para. 37) that if the statutoryprotections offered by s. 530 MGA did apply, “the City would be protected from its failures to have adequate inspections by theprovisions of the Municipal Government Act on which Edmonton relies.” However, I hasten to add that s. 527.2 MGA was notconsidered in this decision. [59] The Appellant also cites Guard v Trochu (Town of), 2001 ABQB 816 [Trochu], where Foster J stated: 25. Liability of the Respondent is not excluded by virtue of

Section 530 of the Municipal Government Act. The system ofmaintenance or inspection with respect to the water and sewer system are not being questioned.

Rather it is the fact that the water systemwas defective, that this condition was known to the Respondent, and the Respondent failed to take appropriate steps to avoid a loss as aresult of the defective state of the water system. [60] In the present case, while the Appellant did not directly question the Respondent’s system of inspection and maintenance attrial, its application was successfully argued by the Respondent and served as the foundation of Judge LeGrandeur’s finding of liability(Trial Decision at paras 25-6): The City recognized that given the volume of traffic in the discrete area allocated to the Dragon Boat Festival for its use, and also theeven more discrete area allocated for the Beer Garden (Special City Permit Exhibit #9), that the risk of a sprinkler hazard causing injurywas higher than in normal circumstances where there was less confined pedestrian activity.

Consequently the observing of hazards in thisdistinct area was specifically discussed amongst the irrigation and maintenance crew. The problem was, however, that they talked aboutit but did nothing more to make the premises reasonably safe than they did in circumstances where there was less expected traffic. Therewas no individual inspection of sprinkler heads in the area, but only a general "keep your eyes open" approach, which is that which wasfollowed in the ordinary circumstances.

The City did not take steps commensurate with the circumstances so as to make this discrete area, in particular the sprinkler headlocations in the area, reasonably safe for individuals visiting the area. This area was a discreet sprinkler area with a limited number ofsprinklers and easily inspected on an individual basis. Checking each sprinkler head located in this area would not have required morestaff, and although it may have taken a greater amount of time than their normal inspection, that cost could have been passed on to theDragon Boat Festival organizers as part of the service package.

It would not have been necessary to immediately repair each and everysprinkler head found to be a hazard as long as they were marked so as to bring their presence to the attention of the visitors. [Emphasis added] [61] Here, the Appellant’s injuries were not caused by defective sprinkler heads, but by the Respondent failing to adapt a system ofinspection. This distinction was identified by the Respondent and I agree. Hussain and Trochu involved damage caused by mechanicaldefects rather than systems of inspection or maintenance.

In the present case, negligence flowed from failing to increase the rate ofinspection of the sprinklers in advance of the Festival despite staff being aware of the increased risk posed by a high concentration ofattendees.

The gradual sinking of the sprinklers in Henderson Lake Park occurred naturally and there was no argument raised at trial oron appeal that the sprinkler in question was defective. [62] The Appellant argues that the law as applied by Judge LeGrandeur would lead to absurdities, such as municipalities not beingliable for damage caused by defective brakes on busses if there was a system of maintenance and inspection in place. However, thehypothetical raised by the Appellant is not the case before me and I decline to decide that issue.

If the sprinkler in question wasdefective, the result at trial may have been different. Statutory

Interpretation [63] Provisions similar to s. 527.2 MGA are found in the Municipalities Act, SS 2005 c M-36.1 s. 339, the Municipal GovernmentAct, RSPEI 1988, c M-12.1 s. 242, the Cities, Towns and Villages Act, SNWT 2003, c 22, Sch B s. 131(1), and the Cities, Towns andVillages Act, RSNWT (Nu) 1988, c C-8 s. 170.3.

However, these sections have not received any judicial consideration relevant to theissue before me. [64] The purpose of interpreting a statute is to determine the Legislature’s will, and the ordinary and plain meaning of the wordsused and their context are the focus of the exercise: McLean v British Columbia (Securities Commission), 2013 SCC 67 ,[2013] 3 SCR 895; Canada Trustco Mortgage Co v Canada, 2005 SCC 54; 1694192 Alberta Ltd v Lac La Biche (Subdivision andDevelopment Appeal Board), 2014 ABCA 319. [65] Sections 527.2 and 532 MGA may in part serve as helpful interpretive aids in establishing whether or not s. 530 MGA appliesto the present circumstances.

Rizzo & Rizzo Shoes Ltd, Re, at para. 21, [1998] 1 SCR 27 requires the Court to read thewords of a statutory enactment “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament.” [66]

Preambles constitute part of an enactment and are intended to serve as explanatory aids

Interpretation Act, RSA 2000, c I-8 s.12(1) [IA]). The

Preamble of the MGA provides some guidance: WHEREAS Alberta’s municipalities, governed by democratically elected officials, are established by the Province, and are empoweredto provide responsible and accountable local governance in order to create and sustain safe and viable communities; WHEREAS Alberta’s municipalities play an important role in Alberta’s economic, environmental and social prosperity today and in thefuture; WHEREAS the Government of Alberta recognizes the importance of working together with Alberta’s municipalities in a spirit ofpartnership to co-operatively and collaboratively advance the interests of Albertans generally; and

WHEREAS the Government of Alberta recognizes that Alberta’s municipalities have varying interests and capacity levels that require flexible approaches to support local, intermunicipal and regional needs; … [Emphasis added] [ 67 ]

Section 3 MGA explicitly captures the

preamble language and lays out the purposes of municipalities: Municipal purposes 3 The purposes of a municipality are (

a) to provide good government , ( a.1 ) to foster the well-being of the environment, (

b) to provide services, facilities or other things that, in the opinion of council, are necessary or desirable for all or a part of the municipality , (

c) to develop and maintain safe and viable communities , and (

d) to work collaboratively with neighbouring municipalities to plan, deliver and fund intermunicipal services. [Emphasis added] [ 68 ] Furthermore, the entirety of

Part 13, Division 1: Liability of Municipalities MGA is relevant to this analysis. Legislative History [ 69 ] The Municipal Government Act , SA 1994, c M-26.1 [ MGA 1994 ] is largely similar to its modern counterpart. However, they are not identical. The

preamble noted above did not exist prior to 2017. Furthermore, MGA 1994 outlines the liability of municipalities subject to two differences relevant to this analysis. [ 70 ] First, s. 530 MGA originally read as follows: 530(1) A municipality is not liable for damage caused by (

a) a system of inspection, or the manner in which inspections are to be performed or the frequency, infrequency or absence of inspections, and (

b) a system of maintenance, or the manner in which maintenance is to be performed, or the frequency, infrequency or absence of maintenance.

(2) No municipality may use the exemption from liability under this

section as a defence in an action under

section 531 or 532 [emphasis added]. [ 71 ] Section 530(2) MGA was repealed by the Municipal Government Amendment Act , 1995, SA 1995, c 24 s. 80 . [ 72 ] However, I am mindful of s. 37 IA which specifically precludes any assumptions or implication that may flow from repealing s. 530(2) MGA 1994 . It is incorrect to conclude that the decision to repeal s. 530(2) MGA 1994 serves as evidence that legislature intended that s. 530 MGA now acts as an exemption from liability under ss. 531 or 532 MGA . The current MGA is silent on this issue. [ 73 ] Second, s. 527.2 MGA did not exist in this version of the Act.

It was added in the Municipal Government Amendment Act , 1999 SA 1999 c 11, s. 29 . Analysis [ 74 ] Generally, the

preamble and purpose of the MGA are of little assistance. Both inform the relationship between the desire to provide good governance and create safe communities.

While it is necessary to provide for the safety of the public by holding municipalities accountable through compensation for damage they cause, the courts and legislators have recognized that protections from liability are necessary to properly govern and make decisions. [ 75 ] The Supreme Court in Just highlighted this tension in reference to policy and operational decisions (at 1239, 1244): The increasing complexities of life involve agencies of government in almost every aspect of daily living.

Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions.

On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of policy. …

It may be convenient at this stage to summarize what I consider to be the principles applicable and the manner of proceeding in cases of this kind. As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists, the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption… [ 76 ] This is reflected in

Part 13, Division 1 MGA . Each of these provisions in some way provide protections to a municipality. Some of these protections are complete, such as ss. 528 , 529 , 530 , or 533 MGA . Conversely, some provisions provide alternate avenues to establish liability such as ss. 527.2 , 531 , 532 , or 534 MGA . [ 77 ] Ultimately, I cannot conclude that s. 527.2 MGA operates to defeat the exclusions enumerated in s. 530 MGA . [ 78 ] This

interpretation is not supported by a plain reading of s. 527.2 which suggests an express intention that it is subordinate. It states it is “[s]ubject to this and any other enactment…”. Similar language is absent from s. 530 MGA . [ 79 ] Furthermore, two presumptions regarding statutory

interpretation have developed to assist in determining which of two competing provisions should prevail. These aids were described by the Supreme Court of Canada in Lévis at para. 58: These are that the more recent law prevails over the earlier law and that the special law prevails over the general. The first presumes that the legislature was fully cognizant of the existing laws when a new law was enacted. If a new law conflicts with an existing law, it can only be presumed that the new one is to take precedence.

The second presumes that the legislature intended a special law to apply over a general one since to hold otherwise would in effect render the special law obsolete. Neither presumption is, however, absolute. Both are only indices of legislative intent and may be rebutted if other considerations show a different legislative intent. [Citations omitted] [ 80 ] At page 12 of his decision Judge LeGrandeur describes s. 530 MGA as “very specific”.

It “deals with exempting the municipal body from liability for damages only with respect to inspection or maintenance.” [ 81 ] Conversely, s. 527.2 MGA provides a general exemption from liability for municipalities acting in accordance with statutory authority “…unless the cause of action is negligence or any other tort ” [emphasis added]. This broad expression of how liability may be imposed on a municipality is significant. The language used in s 527.2 MGA is broader and more general in nature than any of the other provisions in

Part 13, Division 1. [ 82 ] While s. 527.2 MGA is later in time than s. 530 MGA , the specific provision prevails even if it is earlier in time (Ruth Sullivan, Statutory

Interpretation , 3rd ed (Toronto: Irwin Law Inc, 2016) at 327-28; Brenner v Brenner , 2010 BCCA 553 at para. 37 ; Boleak v Boleak , 1999 BCCA 776 at para. 22 ). [ 83 ] The most reasonable

interpretation of s. 527.2 MGA is that it simply says that in order to pursue a claim against a municipality that is acting within its authority, a claimant must first be able to bring the action by way of negligence or another tort. However, in order to be successful, the claim must not fall within the exclusions from liability enumerated in the rest of the Act or in any other enactment. Therefore, when defending a claim in negligence, a municipality can avail itself of s. 530 MGA as a complete defence if the negligence stems from systems of maintenance or inspection. That was the case here.

The Respondent knew that sprinkler heads could sink. It implemented a system of inspection and maintenance.

Section 530 provides immunity. [ 84 ] Furthermore, looking to the overall scheme of the Act and specifically

Part 13, Division 1, there is no language suggesting either expressly or by implication that s. 527.2 MGA would only apply to s 530 MGA . If I decided differently and found s. 527.2 MGA was instead a specific provision which would prevail over the general, it may result in it operating as an exception to each of the provisions in this Division. Therefore, any claim proceeding by way of negligence or any other tort would proceed notwithstanding the protections and exemptions provided by the rest of the Division.

Such a large exception would run contrary to the intentions of the Legislature, which intended municipalities to enjoy several protections from liability. Conflict Between s. 530 MGA and s. 5 OLA [ 85 ] The Appellant argues that s. 527.2 MGA applies in the present case as it specifically contemplates other legislation while s. 530 MGA does not.

Therefore, Judge LeGrandeur erred in interpreting s. 530 to preclude the liability that flows from the OLA . [ 86 ] Interactions between different enactments and provisions are exceedingly common regardless of whether or not each provision specifically contemplates other enactments. Often, single events or subjects are governed by multiple legislative provisions. In Nelson v Grande Prairie (City) , 2019 ABQB 897 , liability under the OLA was precluded by s. 531 MGA . Similar to s. 530 MGA , s. 531 MGA does not expressly identify whether it applies to other Acts, nor do almost any other provisions.

Finding that the provisions of the MGA may only interact with other enactments if they explicitly state as much would result in absurdities and be an undue imposition on plain meaning. [ 87 ] I can find no error in Judge LeGrandeur’s analysis on this issue. At paras 58-64 of the Trial Decision he correctly identified that neither Act had any applicable paramountcy clause or specific provision that would establish which takes priority.

He then found that there was a conflict in specific circumstances as s. 5 OLA and s. 30 MGA would impose and preclude liability, respectively. [ 88 ] Judge LeGrandeur applied the law correctly relying on Lévis to find that s. 530 MGA was both more specific and later in time and therefore exempts the Respondent from liability in this case. Conclusion

[ 89 ] Judge LeGrandeur made no error in law. The Trial Decision stands. [ 90 ] The appeal is dismissed with costs to the Respondent. Heard on the 4 th day of September, 2020. Dated at the City of Lethbridge, Alberta this 15 th day of December, 2020. S.N. Mandziuk J.C.Q.B.A. Appearances: Rajko Dodic, Q.C. Davidson & Williams, LLP for the Appellant Drew J. Wilson Brownlee LLP for the Respondent