In Christensen v. Calgary (City), the Alberta Court of Appeal considered the standard of care under the Occupiers’ Liability Act, R.S.A. 2000, c. O-4 for public in-line skating paths. Berger J.A., writing for the majority, noted that there were no established standards for constructing in-line skating paths and instead stated that the question was whether the plaintiffs had established on a balance of probabilities that, but for the wrongful actions of the appellant, the respondents’ injuries would not have occurred. McDonald J.A., writing in dissent, held that the trial judge failed to articulate a standard of care and that Berger J.A. made the same error as the trial judge and effectively reversed the onus of proof.
At trial, the City of Calgary was found liable when two in-line skaters injured themselves while using a city maintained pathway on public land. The City appealed, arguing that the plaintiffs failed to lead evidence on the standard of care to which the city should be held, and that the standard of care was not articulated by the trial judge as would have been required by Fullowka v. Royal Oak Ventures Inc., a 2010 case. However, Berger J.A. distinguished Fullowka on the basis that the trial judge did not impose an absolute duty upon the city, and instead outlined steps which the city failed to take to ensure that the pathway was safe. These included consulting with the in-line skating community, reasonably considering the needs of in-line skaters, researching relevant guidelines or formulating new ones if none exist, and placing adequate signage to inform users of risks. Justice Berger deferred to the trial judge’s findings of fact that the city failed to maintain the pathway in a reasonable and safe condition for in-line skaters.
In Justice McDonald's dissenting opinion, the majority approach established a reverse onus, requiring the defendant to prove that it was not liable. In addition, he agreed with the appellants' assertion that the trial judge failed to describe a standard to which the city should be held in constructing the path. McDonald J.A held that the steps described by the trial judge amounted to "little more than a wish list and do not constitute a properly articulated standard of care." He found that the absence of established standards should not prevent the trial judge from articulating a standard of care.
August 19, 2011
Link to Decision
Marc Gibson, Heather Palin & Dominik Swierad
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