Municipal Minute: Case Comment on McAllister v. Calgary
In the McAllister v. Calgary (City), 2018 ABQB 480 Madame Justice Kubik of the Court of Queen’s Bench found the City of Calgary liable under the Occupiers Liability Act for injuries suffered by the Plaintiff Kyle McAllister when he was assaulted by strangers in the +15 walkway that connects Canyon Meadows C-Train station to the station parkade.
Canyon Meadows C-Train station was built in 2001. It is a center loading platform without any grade level access. Access to the C-Train station is by way of the +15 walkway. At approximately 1:30 a.m. on Sunday, January 1, 2007 the Plaintiff arrived in his car at the parkade to meet someone at the station. He and a friend entered the +15 on their way to the station. There the Plaintiff was, without provocation, assaulted by a number of individuals who were unknown to him. The assault lasted approximately 20 minutes and left the Plaintiff seriously injured. The Plaintiff sued the City claiming it was liable for breaching the statutory duty of care under the Occupiers Liability Act. The trial was held on the issues of liability only.
Justice Kubik decided that the +15 was “premises” of which the City of Calgary was the “occupier” and that the Plaintiff was a “visitor” to those premises. Accordingly the City owed the Plaintiff a duty to take reasonable care to see that he was reasonably safe in using the premises.
Concerning the standard of care and whether it was met by the City, the Court considered evidence that the C-Train station was equipped with 25 video surveillance cameras. The footage from these surveillance cameras was monitored at a central operations control room by video monitoring personnel. The +15 was illuminated by overhead lighting. The entire C-Train system was patrolled by 46 Protective Services officers. At the time, New Year's Eve, a team of 11 officers was patrolling the system. New Year's Eve was a free fare evening and the Court concluded that it was a busy ridership night compared to a typical Sunday. Calgary Transit did not have a written special events policy to deal with occasions of increased ridership. Calgary Transit crime reports indicated the highest rate of criminal activity on the C-Train was typically between 11 p.m. and 2 a.m. The main assailant in the assault was known to Calgary Transit's Protective Services officers. Calgary Transit did not have a trespass ban policy in place.
The evidence also showed that the assault was not noticed by the personnel monitoring the video surveillance footage. Calgary Transit only became aware of the incident two days later when it was reported by the Plaintiff’s father. Transit Peace Officers subsequently identified two of the assailants from the security camera footage. The Court received expert evidence from two experts qualified to give evidence about environmental criminology and security, and Crime Prevention Through Environmental Design (CPTED). The Court noted that CPTED has been used since the 1970s in municipal design. The Court judged the Canyon Meadows station against CPTED principles finding that at a minimum “the duty of care owed by the City would include the installation and maintenance of sufficient lighting, video surveillance, and staffing levels to deter crime or allow its detection and an appropriate and timely response thereto.” The Court determined that the lighting and video surveillance were deficient resulting in an inability on the part of video surveillance operators to take notice of the assault and dispatch transit officers or police to the scene of the assault. The Court further found that the Transit system as a whole was understaffed by Peace Officers. The Court further found that the evidence did not establish that the station was built to meet the standards of CPTED. The Court also passed judgment on the Bylaw under which the City regulates and controls the conduct of those using its public transit system. This bylaw prohibits disorderly, indecent or offensive behaviour, fighting and interfering with the comfort or convenience of other persons. The Court judged that the bylaw met the standard of care to allow Peace Officers to properly address criminal behaviour.
Finally the Court found on the issue of causation that on the balance of probability the attack would have been observed in its first minute by video monitoring personnel and that an increased complement of Peace Officers would have resulted in a timely response and intervention to prevent the continuation of the assault. On this basis the Court found that the City was liable to the Plaintiff under the Occupiers Liability Act.
The decision of Justice Kubik in McAllister would appear to significantly alter the legal landscape in Alberta for the liability of cities and towns as an occupier of premises under the Occupiers Liability Act and municipal liability for policy decisions. While we do not know all of the evidence that was presented at the trial, nor all of the legal arguments made by the parties’ lawyers, the decision raises questions about the status of defences from civil liability that have historically protected municipalities.