Muriel Winona Scheck Plaintiff And: Parkdale Place Housing Society v. The Corporation of the District of Summerland, 2018 BCSC 938

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Scheck v. Parkdale Place Housing Society, 2018 BCSC 938 Date: 20180608 Docket: 12828 Registry: Rossland Between: Muriel Winona Scheck Plaintiff And: Parkdale Place Housing Society and The Corporation of the District of Summerland Defendants Before: The Honourable Mr. Justice Johnston Reasons for Judgment Counsel for the Plaintiff: J. Gelber Counsel for the Defendant Parkdale Place Housing Society: P. O’Neill Counsel for the Defendant the District of Summerland: J. Krusell Place and Date of Hearing: Rossland, B.C.

May 1, 2018 Place and Date of Judgment: Rossland, B.C. June 8, 2018 [ 1 ] On December 29, 2015 Ms. Scheck slipped and fell on a public sidewalk in Summerland, B.C. The sidewalk separated Angus Street in Summerland from a senior’s housing facility operated by the defendant Parkdale Place Housing Society (“Parkdale”), where Ms. Scheck lived. The sidewalk was the property of the defendant The Corporation of the District of Summerland (“Summerland”). [ 2 ] All parties agree that Ms.

Scheck fell on Summerland’s sidewalk, and that she injured herself in the fall. [ 3 ] All parties wish the court to determine if either or both of the defendants owed Ms. Scheck a duty of care on the day she fell, and, in the case of Summerland, whether any duty it owed to Ms. Scheck was vitiated or negated by a policy immunity defence. [ 4 ] For the purposes of this application, Summerland admits that it “occupied” the sidewalk where Ms.

Scheck fell, in the common law sense of occupation, as well as within the definition of occupier set out in s. 1 of the Occupiers Liability Act , R.S.B.C. 1996, c. 337 (the Act ). [ 5 ] On October 25, 1993, Summerland adopted Bylaw 93-065, pursuant to s. 579(2)(

a) of the Municipal Act , R.S.B.C. 1979, c. 290, which is now renamed to the Local Government Act , R.S.B.C. 2015, c. 1. [ 6 ] Relevant portions of the bylaw provide: 1. “Occupier” shall have the meaning given it by

Section 1 of the Municipal Act , R.S.B.C.,

Chapter 290 and amendments thereto; 2. Every owner or occupier of real property, shall remove, snow, ice or rubbish from the sidewalks or footpaths bordering on the real property owned or occupied by them not later than whichever of the following times in a particular case apply: a. If such snow, ice or rubbish accumulated prior to 12:00 noon on any day then not later than 12:00 noon of that day; or b. If such snow, ice or rubbish accumulated after 12:00 noon on any day then not later than 12:00 noon on the next following day; [ 7 ] The parties have not agreed on whether Ms.

Scheck’s fall was caused or contributed to by an accumulation of ice or snow, or both, on the sidewalk, or how much ice or snow was on the sidewalk, if any. [ 8 ] Each of Summerland and Parkdale have applied for orders dismissing Ms. Scheck’s claims on different bases: Summerland

says any duty of care it owed to the plaintiff has been negated or in the alternative satisfied by its snow and ice removal Bylaw 93-065;Parkdale says it did not owe Ms. Scheck any duty of care with respect to Summerland’s sidewalk. [9] Neither Parkdale nor Summerland have claimed over against the other by way of third party proceedings, at least to this point.

SUMMERLAND APPLICATION [10] Summerland has two main arguments: first, that it cannot be held liable as the occupier of the sidewalk for failing to “take carethat in all the circumstances of the case is reasonable to see that a person, … on the premises, … will be reasonably safe in using thepremises”, in the language of s. 3(1) of the Act. Subsection (2)(1) provides that this duty applies in relation to the condition of thepremises. [11] The Act contains these

definitions in s. 1: "occupier" means a person who (

a) is in physical possession of premises, or (

b) has responsibility for, and control over, the condition of premises, the activities conducted on those premises and thepersons allowed to enter those premises, and, for this Act, there may be more than one occupier of the same premises; "premises" includes (

a) land and structures or either of them, … [12] Summerland’s argument is that any common law and/or statutory duty of care that it may have owed to Ms.

Scheck “is vitiatedby way of the policy immunity defence, the District’s reasonable, rational and bona fide policy decision to adopt (pursuant to itsauthority under the Community Charter, S.B.C. 2003, c. 26) a bylaw in respect of snow, ice and rubbish removal from sidewalks, and theproper operation of that bylaw”. [13] In the alternative, Summerland argues that its snow, ice and rubbish removal bylaw met the standard of care imposed on it bycommon law and/or statute.

This argument repeats that the bylaw was reasonable, rational and a bona fide policy decision onSummerland’s part. [14] In effect, Summerland argues that in a bona fide exercise of its authority, after weighing its obligations against its ability to pay,it reasonably and properly shifted any obligation to clear its sidewalk of snow and ice to Parkdale as the adjoining property owner. [15] There is no suggestion that the bylaw was not properly passed, nor that Summerland had the authority necessary to pass it unders. 579(2)(

a) of the Municipal Act, R.S.B.C. 1979, c. 290, which was in effect when the bylaw was passed in 1993. [16] Minutes of a meeting of Summerland’s council where the bylaw had third reading indicate that the bylaw represented anextension of the obligation to clear municipal sidewalks of snow, ice and rubbish from owners of commercial properties to owners of allproperties, and show that council considered the cost to Summerland of clearing sidewalks in residential areas before it passed the bylaw. [17] The two-step approach to whether a government agency owes a duty of care to a person is taken from Anns v.

Merton LondonBorough Council (1977), [1978] A.C. 728 (U.K.H.L.), as approved by the Supreme Court of Canada in Just v. British Columbia, (SCC), [1989] 2 S.C.R. 1228, 64 D.L.R. (4th) 689.

The first step requires consideration of whether there was a sufficientrelationship of proximity between an alleged wrongdoer and a person claiming to have suffered damage such that a person in the positionof the alleged wrongdoer would reasonably contemplate that carelessness on their part may be likely to cause damage to the other. [18] If the answer to the first question is yes, one moves on to the second step, and that is to consider whether there areconsiderations that ought to negate or reduce or limit the scope of the duty owed by the wrongdoer, or the class of persons to whom theduty is owed, or the damages to which a breach of the duty may give rise. [19] As stated by Macaulay J. in Sullivan v.

Victoria (City), 2010 BCSC 218 at para. 23: The first step offers little difficulty. There is sufficient proximity between a municipal government and those who walk its streets that thelatter reasonably expect the sidewalks to be reasonably maintained and the former foresees the risk of harm if it does not do so. Thus, aprima facie duty of care exists in the present circumstances. In the same way, and on the same reasoning, Summerland owed a prima facie duty of care to Ms. Scheck in this case. [20] Turning to the second step, it is here that Summerland asserts what it calls its policy immunity defence.

It argues that its Bylaw93-065 negates the duty it otherwise owed to Ms. Scheck, and that the bylaw was passed in good faith as a reasonable and rational policydecision on its part, having weighed the public good against the cost to the public purse of inspecting and clearing public sidewalks. [21] In the alternative, Summerland argues that if it owed a duty to Ms.

Scheck, its Bylaw met the applicable standard of care. [22] A branch or department of government that seeks to negate a duty of care that it would otherwise owe to a claimant, on thestrength of what it asserts was a true policy decision must show that the decision on which it relies involved social, political andeconomical factors or constraints. See Brown v. British Columbia, (SCC), [1994] 1 S.C.R. 420 at 441. [23] In this case, Summerland needs to show that it acted reasonably in exercising discretion in good faith when it arrived at the

decision it says negated a duty it owed Ms. Scheck. At minimum, Summerland must show that it considered the matter. See Just v.British Columbia, (SCC), [1989] 2 S.C.R. 1228 at 1242-1243. [24] The parties have agreed that Ms. Scheck fell and injured herself on Summerland’s sidewalk on a winter’s day in 2015, but theyhave not agreed on why she fell, nor is there evidence from which I can conclude the reason for her fall. Summerland submits that thecourt need not make findings with respect to the condition of its sidewalk when and where Ms. Scheck fell in order to decide itsapplication. [25] I disagree.

Summerland’s Bylaw 93-065 is concerned entirely with snow and ice removal, and who is responsible for it. TheBylaw says nothing about, nor would it afford any protection against, an unreasonable defect in the sidewalk that created anunreasonable risk of tripping, nor does it deal in any way with inspection for such faults. [26] In other circumstances, that lack of evidence might lead to a dismissal of a claim brought to

summary trial, on the basis that theplaintiff in an action must lead evidence sufficient to prove her claim on a balance of probabilities. [27] But the parties’ agreement to bring at least the Summerland application in order to argue Summerland’s policy immunitydefence may well have lulled plaintiff’s counsel into thinking that for the purpose of that application, it was not important to prove theunderlying cause of action. [28] I conclude that it would not be just to determine Summerland’s policy immunity defence, based on its snow and ice removalbylaw, without some agreement that Ms.

Scheck did in fact slip on snow or ice on December 29, 2015, or sufficient evidence that I couldfind on a balance of probabilities that snow or ice caused her fall. [29] Given the desire of the parties to have Summerland’s issue determined summarily, the appropriate order in my view is toadjourn its application to allow the parties to either agree that Ms. Scheck fell after she slipped on snow or ice, or lead enough evidenceto permit that finding. PARKDALE APPLICATION [30] Parkdale’s application is different.

It submits that it is entitled to have the claims against it dismissed because it was not an“occupier” within the meaning of the Act of Summerland’s sidewalk at the time Ms. Scheck fell, that it owed no duty of care to Ms.Scheck, and no liability can attach to it.

Parkdale says that can be decided without considering whether any steps it took to clear thesidewalk of snow and ice were sufficient to meet any standard of care that might be imposed on it. [31] The parties agree that Summerland’s Bylaw 93-065 did not impose a common law duty of care on Parkdale. [32] Parkdale relies on the definition of “occupier” in s. 1 of the Act and says it was not in physical possession of the sidewalk andhad no control over the condition of the sidewalk, activities conducted on it and those allowed on the sidewalk. [33] What might constitute physical possession under the Act was considered in Gardner v.

Unimet Investments Ltd., 19 B.C.L.R.(3d) 196, (C.A.), where a trial judge’s finding that a defendant was not in physical possession of an area, thedefendant not having appropriated the sidewalk or placed anything in or around it, was conceded by the appellant. The Court of Appealrepeated the trial judge’s citation of an unreported decision of this court in Goldmanis v. Mador, (BC SC),[1991] B.C.J.

No. 3049, where the court concluded that a tenant of premises was an “occupier” of a lot immediately in front of the leasedpremises partly because the tenant had “physically taken possession of the area by parking a 45-foot trailer, a forklift and other materialson the lot”. Goldmanis was also applied by the Court of Appeal in Chamberlain v. Jodoin, 2012 BCCA 108. [34] I agree with Parkdale that the evidence in this case, particularly the affidavit of Ms. Gray, establishes that Parkdale did not havephysical possession of Summerland’s sidewalk within the meaning of s. 1(

a) of the Act. [35] But Parkdale might be an “occupier” under ss. (

b) if it is found to have had responsibility for and control over the condition ofthe sidewalk, the activities on the sidewalk and those allowed on the sidewalk. [36] That these criteria are to be read conjunctively was established in Chamberlain at para. 30.

In that same decision, at para. 36,the court stated: It would therefore appear from the jurisprudence that while some degree of day-to-day control over the premises and those who use thepremises is necessary, exclusive possession or control of the premises is not a requirement for the definition of an occupier under s. 1(b)of the Act. [37] In Chamberlain a decision holding a tenant of a portion of a building to be an occupier of an apron space outside the wall of theleased premises, and between the leased area and an adjoining municipal sidewalk was affirmed because the tenant had an obligationunder the lease to clear the apron, and exercised some control over the condition, activities and persons using the apron by placing a signon it, and thereby inviting patrons to cross the apron to access her shop (at para. 43). [38] The plaintiff responds to Parkdale’s argument by citing Lewis Klar et al, Remedies in Tort (Toronto: Carswell, 1987) (loose-leafrevision 8), ch. 18 at 41 and Snitzer v.

Becker Milk Co. Ltd. (1976), (ON SC), 75 D.L.R. (3d) 649 (Ont. H.C.), to arguethat Parkdale owed a common law duty as invitor to Ms. Scheck as invitee. This argument does not recognize that the Act has done awaywith the common law considerations of invitor/invitee, licensor/licensee, and the duties and standards of care imposed on occupiersbefore the Act came into force in 1974. See, in that regard, Tutinka v. Mainland Sand & Gravel Ltd. (1993), (BC CA),86 B.C.L.R. (2d) 145 at para. 51 (C.A.), leave to appeal denied (1994) 91 B.C.L.R. (2d) xxxvi (note). In Weiss v.

Young Men’s ChristianAssociation of Greater Vancouver (1979), (BC CA), 11 B.C.L.R. 112 (C.A.), the court cautioned, at 118, againstrelying on occupier liability cases decided under the common law, before the Act came into force.

[39] While Summerland’s Bylaw 93-065 might have assigned responsibility to Parkdale to remove snow and ice from the sidewalk,Parkdale says that falls short of giving it control over the sidewalk or those using it. [40] Ms. Scheck responds by citing cases where occupiers of property adjoining public sidewalks were held liable for injuriesoccasioned to users of the sidewalks. [41] In that regard, Ms. Scheck relies on the reasoning in Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen. Div.) and Moodyv. Toronto (City) (1996), (ON SC), 31 O.R. (3d) 53 (Gen. Div.).

In Bogoroch, a store owner was held liable asoccupier of a municipal sidewalk outside the store’s premises because the store owner habitually used the sidewalk to display itsmerchandise. In Moody, the owners of a private stadium were held to be liable as occupiers of public walkways leading to the stadiumbecause of what were termed “special circumstances” by the Ontario Court of Appeal when it commented on both decisions inBongiardina v.

York (Regional Municipality) (2000), (ON CA), 189 D.L.R. (4th) 658, 49 O.R. (3d) 641 (C.A.).Bongiardina confirmed that, at least in Ontario, a municipal bylaw that imposes an obligation on property owners to clear snow and icefrom municipal sidewalks adjoining their properties did not make the property owners occupiers of the sidewalks, nor did it imposeliability at common law for injuries suffered by pedestrians who fell as a result of alleged deficiencies in the property owners’ snowclearing efforts. [42] Ms. Scheck cited Lysack v.

Burrard Motor Inn Ltd. (1991), (BC CA), 58 B.C.L.R. (2d) 33 (C.A.), where thedefendant hotel was found liable in negligence for placing planters on a public sidewalk so as to divert pedestrians toward a part of thesidewalk where a danger known to the hotel was located.

The court found that the hotel was not in sufficient control of the area to be anoccupier under the Act, and the majority decided the appeal on ordinary negligence principles. [43] There is no evidence that Parkdale asserted any control over the activities conducted on the sidewalk outside its building, or thatit purported to control or regulate who might use the sidewalk.

Its obligations to clear snow and ice gave it arguable control over at leastthat aspect of the condition of the sidewalk, but not, say, control over cracks or other defects in the surface of the sidewalk. [44] On a review of all of the cases cited, I conclude that Parkdale owed no duty to Ms.

Scheck as an occupier of the municipalsidewalk where she fell. [45] As to whether Parkdale owed a duty at common law, I accept the reasoning of the Ontario Court of Appeal in Bongiardina atpara. 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 Donoghue v.Stevenson, (FOREP), [1932] A.C. 562 (H.L.), has been expanded in recent years to cover a myriad of newrelationships, it would stretch it too far if it was applied in the circumstances of this case. A homeowner has a duty to ensure that his orher 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. [46] I do so with some reluctance as this seems contrary to the prior decision of this court in Reidy v. Kamloops Hotel Ltd. (1997), 41B.C.L.R. (3d) 338 (S.C.). There, a plaintiff fell on an icy municipal sidewalk outside the defendant hotel. The court found that the hotelwas not an occupier of the sidewalk at para. 6, then went on to consider whether the hotel was liable at common law.

In concluding thatthe hotel was liable to the pedestrian, the court applied the “unusual danger” test from Indermaur v. Dames (1866), L.R. 1 C.P. 274(Eng. C.P.), and referred to the Supreme Court of Canada decision in Campbell v. Royal Bank (1963), (SCC), [1964]S.C.R. 85, 43 D.L.R. (2d) 341, which considered a test to determine if an unusual danger existed. [47] What the court in Reidy did not refer to, as it was apparently not cited, were the decisions in Weiss and Tutinka.

With respect, itseems to me that the decision in Reidy was per incuriam as a result of not having the advantage of those two decisions, and should not befollowed. [48] I am able to determine the question put by Parkdale’s application, as it does not depend on the condition of the sidewalk. Iconclude that Parkdale owed no duty to Ms. Scheck with respect to Summerland’s sidewalk and dismiss her claims against Parkdale. “R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston