IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151105

Docket: 23438

Registry:
Cranbrook

Between:

Jacquelyn Ann
Pruden

Plaintiff

And

Andrew Stephen
Charles Gagnon and Casey Jensen

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
This matter comes before the court on a trial of liability alone,
damages having been severed September 22, 2015 by Master Scarth.

[2]            
In the fall of 2012 the plaintiff, the mother of a four year old
daughter, Autumn, sought the services of a babysitter. The defendant, Casey
Jensen, was recommended by a mutual friend. The parties worked out an
arrangement whereby the plaintiff would drop Autumn off at 6:00 a.m. at the
defendant’s residence and pick her up after she finished work at 3:00 p.m. The
arrangement included a stipulation that Casey Jensen would meet the plaintiff
at the door at 6:00 a.m. The plaintiff would typically arrive early, read a
book for a few minutes and go to the door at 6:00 a.m. precisely. The parties
adhered to this routine with very few exceptions up to February 4, 2013. On
that day the plaintiff arrived as usual, a few minutes early, parked a little
way up the street, and read until 6:00 a.m. It was still dark, although the
area was well illuminated. The plaintiff then drove toward the defendant’s
house, parking on the wrong side of the street, nose to nose with the
defendant’s vehicle, which was parked directly in front of the house. A walkway
runs perpendicularly from the front door, in roughly the centre of the property,
to a sidewalk running along the street on City of Cranbrook property.

[3]            
The plaintiff gathered up Autumn and her things, and stepped onto the
sidewalk. She lost her footing and fell to the ground. She was unable to get
up. In the immediate aftermath, the defendants attended to the plaintiff, took
Autumn into the house, and called an ambulance. The plaintiff’s husband was
also called and subsequently attended.

[4]            
There is no question that the sidewalk was icy. A photograph taken some hours
later on February 4, 2013 shows a patch of bare pavement and some wet areas
that are damp and icy toward the area at the intersection of the walkway and
the sidewalk. The weather data from the Cranbrook weather station shows
overnight temperatures slightly above freezing. Most significantly, Gordon
Ingram, one of the two ambulance attendants who attended after the plaintiff
fell, said the road surface as very icy and slippery and they had to spread
sand on the pavement to make it easier to do their job. The gurney they used to
put the plaintiff in the ambulance was slipping on the road surface.

[5]            
The defendant, Andrew Gagnon testified that he had spent the day before
the plaintiff’s accident clearing the sidewalk of ice. He said there was quite
a bit to do and that he used a 5 foot pry bar to chip out the ice while the
neighbourhood children took the ice away to a snowpile nearby.

[6]            
Mr. Gagnon said that February 3 was a warm nice day. He said he cleared
both the sidewalk and the walkway to the house. He said the City would plow
snow onto the sidewalk and that he and his neighbours would clear it, sometimes
with the aid of a neighbour’s bobcat. Mr. Gagnon said that on this occasion he
finished up about 4:30 or 5:00 and that the sidewalk was bare and dry. He did
not see water pooling on the sidewalk.

II

[7]            
The parties agree that the Occupier’s Liability Act [RSBS 1956]
ch. 337 (the “Act”) applies. The relevant provisions are:

(1)        the definition of “occupier”

“occupier” means a person who

(a)        is in physical possession of premises, or

(b)        has responsibility for, and control over, the
conditions of premises, the activities conducted on those premises and the
persons allowed to enter those premises.

(2)        the duty of care:

3(1)      An occupier of premises owes a duty to take that
care that in all the circumstances of the case is reasonable to see that a
person, and the person’s property, on the premises, and property on the
premises of a person, whether or not that person personally enters on the
premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1)
applies in relation to the

(a)        condition of the premises,

(b)        activities on the premises, or

(c)        conduct of third parties on the premises.

(3)        Despite subsection (1), an occupier has no duty
of care to a person in respect of risks willingly assumed by that person other
than a duty not to

(a)        create a danger with intent to do harm to the
person or damage to the person’s property, or

(b)        act with reckless disregard to the safety of the
person or the integrity of the person’s property.

[8]            
The duty of persons in Cranbrook relative to sidewalks is set out in
Bylaw No. 3021 streets and traffic by-law s. 56:

56.       Every person being an
occupant or owner of any property abutting or fronting upon a portion of a
sidewalk in a commercially zoned area shall cause such portion of the sidewalk
to be cleared and kept clear of all snow, ice, dirt, litter and rubbish and
shall dispose of same otherwise than by leaving it upon the street.

[9]            
The plaintiff submits that the by-law applies to the defendants because
their contract for babysitting services put the plaintiff and the defendant
into a commercial relationship.

[10]        
There is no suggestion that the defendants were the occupiers of the
sidewalk within the definition of the Act, nor is there any suggestion
that the plaintiffs fall took place other than on the City-owned sidewalk.

[11]        
The plaintiff submits that the defendants owed her a common law duty of
care founded in the defendant’s assumption of responsibility for the sidewalk.
She further submits that they failed to meet the standard of care in the
circumstances. This was expressed to be a duty to check the condition of the
sidewalk within the hour before the plaintiff’s expected arrival at 6:00 a.m.

III

[12]        
I do not think liability can be established on any of the grounds
advanced. Bylaw 3021 is restricted to a “commercially zoned area.” This
does not include “commercial uses” outside those areas, even if the arrangement
between the parties for babysitting could be so described.

[13]        
The defendants are not “occupiers” of the sidewalk as defined by the Act.
They were neither in physical possession of the sidewalk nor had they any
responsibility for, or control over, the condition of the sidewalk, the
activities conducted on the sidewalk or the persons allowed to be on the
sidewalk.

[14]        
On the issue of whether the defendant’s voluntary clearing of the
sidewalk gave rise to a duty of care, I think Gardner v. Unimet Investments
Ltd. et al, 19 B.C.L.R. (3d) 196 is directly on point. (See, more recently Maras
v. Seemore Enterprises Ltd. 2014 BCSC 1121). In Gardner the Court of
Appeal affirmed the reasoning of Baker J., quoting from her judgment at length,
including the following passage:

6. The appellant says that the test under s.
1(b) of the Act is whether the respondents had some – as opposed to sole –
measure of control over the sidewalk. It was an agreed fact that "DPE
cleared the sidewalk from time to time, believing that DPE had some
obligation to do so under a City of Vancouver Bylaw". The appellant also
asserts that DPE accepted responsibility for and control over the sidewalk as
can be seen from the provisions of the lease. I do not read the reasons for
judgment of the trial judge such that she considered the test for an "occupier"
within the Act to be one of sole control or responsibility over the sidewalk
where the appellant slipped and fell. In reference to s. 1(b) of the Act she
said:

Section 1(b) of the Act is
conjunctive. Both control over and responsibility for the condition of premises
are required for the definition of "occupier" to apply. The only
action on the part of DPE which could be considered to constitute
"responsibility for, and control over" the sidewalk was DPE’s
practise of voluntarily clearing the sidewalk from time to time. In Lysack,
the hotel manager had a practise of shovelling snow off the sidewalk, but the
hotel was not found to be an occupier of the sidewalk. Even if DPE could be
considered to have unilaterally assumed responsibility for cleaning the
sidewalk adjacent to its premises, that activity gave DPE no control over the
sidewalk. It could not restrict or direct activities conducted on the
sidewalk, and it had no control over persons using the sidewalk. I conclude
that DPE was not an occupier of the sidewalk.

7.         On challenging this finding of fact by the trial
judge the appellant must show that the judge was plainly wrong and in my
opinion this cannot be done.

8.         On the issue of DPE owing a duty of care to the
appellant otherwise than under the Occupiers Liability Act the trial
judge said this:

I agree with DPE’s submission that the Vancouver City Bylaw
requiring an owner of real property to remove snow and ice from municipal
sidewalks adjacent to the property only applies to the owner of property, and
not to a tenant. In its lease with Unimet, DPE did not explicitly assume
responsibility for complying with the bylaw; nor did it do so implicitly by its
covenant to comply with all municipal regulations applicable to the demised
premises. The sidewalk is not part of the demised premises. The bylaw is
applicable to the owner of the property, not the property itself. As well, it
has been held that the failure to comply with a municipal snow-clearing bylaw
does not render an owner civilly liable to third parties.

***

Here there is no evidence that
DPE caused snow or ice to form on the sidewalk, or contributed to the creation
of the hazard by directing or diverting Mr. Gardner’s path. There is no special
circumstances here which place on DPE a duty of care to users of the sidewalk.
Absent a duty of care, Mr. Gardner’s claim in negligence cannot succeed and
the action against DPE must be dismissed.

[15]        
Lastly, I am of the view that even if such a duty could be construed on
the facts of this case, it would not extend to a duty than to do more than the
defendant did in clearing the ice from the sidewalk the evening before, and
would not have extended to the duty suggested by the plaintiff, that is, of
getting up every morning to check the surface condition in any event.

[16]        
The plaintiff’s case is dismissed with costs.

“McEwan J”