Bowden v. Withrow's Pharmacy Halifax (1999) Ltd. et al., 2008 NSSC 252

• Judge: Beveridge, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 09, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 252;(2008), 268 N.S.R.(2d) 299 (SC)

Bowden v. Withrow's Pharmacy (2008), 268 N.S.R.(2d) 299 (SC);

    857 A.P.R. 299

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. SE.001

Winnifred Bowden (plaintiff) v. Withrow's Pharmacy Halifax (1999) Limited, E. Mantley Maintenance Services and Halifax Regional Municipality (defendants)

(SH 213649; 2008 NSSC 252)

Indexed As: Bowden v. Withrow's Pharmacy Halifax (1999) Ltd. et al.

Nova Scotia Supreme Court

Beveridge, J.

August 28, 2008.

Summary:

The plaintiff allegedly slipped on accumulated snow, ice and water as she stepped onto Gottingen St. from the sidewalk in front of a pharmacy. The plaintiff brought a negligence action for damages against the municipality, the pharmacy and the maintenance company retained by the pharmacy to clear the sidewalk. The maintenance company chose not to defend and default judgment was obtained against it. The pharmacy cross-claimed against the maintenance company and the municipality, seeking indemnity if it was found liable. The municipality cross-claimed against the pharmacy and maintenance company, seeking indemnity if it was found liable. The pharmacy and municipality applied for summary judgment under rule 13 respecting the claims against them and their cross-claims.

The Nova Scotia Supreme Court granted summary judgment dismissing the plaintiff's claim and the municipality's cross-claim against the pharmacy as failing to disclose a reasonable cause of action. The court dismissed the municipality's summary judgment application, as there was a genuine issue for trial as to whether the municipality, in carrying out the operational component of its snow-clearing policies, met the requisite standard of care.

Municipal Law - Topic 1730

Liability of municipalities - Highways and streets - Dangerous highway conditions - Ice and snow - [See Torts - Topic 3553 ].

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - [See Torts - Topic 3553 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - The Nova Scotia Supreme Court discussed the test for summary judgment to dismiss a plaintiff's action under Civil Procedure Rule 13 on the basis that there was no arguable issue to be tried - The defendant had to establish that there was no genuine or arguable issue of material fact to be tried - If such was established, the plaintiff had to establish a "real chance of success" - See paragraphs 13 to 18.

Torts - Topic 277

Negligence - Breach of statute - Effect of breach of statute - [See Torts - Topic 3554 ].

Torts - Topic 3553

Occupiers' liability or negligence for dangerous premises - Occupier and premises defined - Respecting streets and highways - The 75 year old plaintiff allegedly slipped on accumulated snow, ice and water as she stepped onto a crosswalk from the sidewalk in front of a pharmacy - The plaintiff brought a negligence action for damages against the municipality, the pharmacy and the maintenance company retained by the pharmacy to clear the sidewalk - The maintenance company chose not to defend and default judgment was obtained against it - The pharmacy cross-claimed against the maintenance company and the municipality, seeking indemnity - The municipality cross-claimed against the pharmacy and maintenance company, also seeking indemnity - The municipality applied for summary judgment under rule 13 to dismiss the claim and cross-claim against it - The evidence established that the fall occurred within the cross-walk (not the sidewalk) - The municipality had no statutory duty to clear the street - The Municipal Government Act's provision on this issue was permissive - Section 344 of the Act, which required the municipality to maintain property in a municipality so as not to be dangerous or unsightly, did not apply to streets and sidewalks - Further s. 12 of the Occupiers' Liability Act specifically provided that the Act did not apply to a municipality as the occupier of a highway, public walkway or public sidewalk - There was no basis to challenge the municipality's policy decision respecting snow and ice clearing - However, there was a factual dispute as to whether the municipality was negligent in implementing its snow clearing policies (i.e., question as to whether area around crosswalk plowed properly) - The Nova Scotia Supreme Court accordingly refused to grant summary judgment dismissing the claim against the municipality - While the court had "some doubt" as to the plaintiff's chance of success, an application for summary judgment was not a trial and the plaintiff had the right to a trial to determine whether the municipality, in carrying out its policies, met the requisite standard of care - See paragraphs 63 to 134.

Torts - Topic 3554

Occupiers' liability or negligence for dangerous premises - Occupier and premises defined - Respecting sidewalks - The 75 year old plaintiff allegedly slipped on accumulated snow, ice and water as she stepped onto a crosswalk from the sidewalk in front of a pharmacy - The plaintiff brought a negligence action for damages against the municipality, the pharmacy and the maintenance company retained by the pharmacy to clear the sidewalk - The maintenance company chose not to defend and default judgment was obtained against it - The pharmacy cross-claimed against the maintenance company and the municipality, seeking indemnity if it was found liable - The municipality cross-claimed against the pharmacy and maintenance company, seeking indemnity if it was found liable - The pharmacy applied for summary judgment under rule 13 to dismiss the claim and cross-claim against it - The Nova Scotia Supreme Court granted summary judgment dismissing the plaintiff's action and the municipality's cross-claim against the pharmacy as failing to disclose a reasonable cause of action - The municipality owned the sidewalk and street and was obligated to clear the street of ice and snow, but Bylaw S-300 required the property owner (or tenant) to clear the sidewalk - The pharmacy had contracted with the maintenance company to do so and the maintenance company had cleared the sidewalk that day - The evidence established that the plaintiff fell in the crosswalk, not on the sidewalk - That was conclusive of the pharmacy's lack of liability - However, even if the plaintiff had fallen on the sidewalk, the pharmacy was not an "occupier" at common law or under s. 2 of the Occupiers' Liability Act - The pharmacy was not in physical possession of the sidewalk or crosswalk - Although the pharmacy had some responsibilities and control over the condition of the sidewalk, it had no responsibility or control over activities conducted on the sidewalk and crosswalk, and no control over the persons using the sidewalk - Further, even if the pharmacy breached the snow-clearing bylaw, which was contrary to the evidence, such breach would not give rise to liability - The plaintiff's claim and municipality's cross-claim had no real chance of success - See paragraphs 20 to 62.

Cases Noticed:

Sherman v. Giles (1994), 137 N.S.R.(2d) 52; 391 A.P.R. 52 (C.A.), refd to. [para. 10].

Fraser et al. v. Westminer Canada Ltd. et al. (1996), 155 N.S.R.(2d) 347; 457 A.P.R. 347 (C.A.), refd to. [para. 10].

Hunt v. T & N plc et al. (1990), 117 N.R. 321 (S.C.C.), refd to. [para. 10].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Future Inns Canada Inc. v. Labour Relations Board (N.S.) et al. (1999), 179 N.S.R.(2d) 213; 553 A.P.R. 213 (C.A.), refd to. [para. 10].

R. v. Morabito, [1949] S.C.R. 172, refd to. [para. 11, footnote 1].

Huntley et al. v. Hogeterp et al. (2007), 256 N.S.R.(2d) 20; 818 A.P.R. 20 (C.A.), refd to. [para. 14].

Huntley (Litigation Guardian of) v. Larkin - see Huntley et al. v. Hogeterp et al.

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137 (C.A.), refd to. [para. 15].

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, refd to. [para. 16].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 17].

Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 111 O.A.C. 201; 164 D.L.R.(4th) 257 (C.A.), refd to. [para. 17].

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 17].

Shwemer v. Odeon Morton Theatres Ltd. (1985), 33 Man.R.(2d) 109 (Q.B.), refd to. [para. 47].

Turner v. Windsor (City) (1984), 46 O.R.(2d) 174; 9 D.L.R.(4th) 123 (Co. Ct.), refd to. [para. 47].

Slumski v. Mutual Life Assurance Co. of Canada, [1994] O.J. No. 301 (Div. Ct.), refd to. [para. 47].

Chong v. Flynn et al. (1998), 233 A.R. 120 (Q.B.), refd to. [para. 47].

Gardner v. Unimet Investments Ltd. et al., [1995] B.C.T.C. Uned. 56; 4 B.C.L.R.(3d) 375 (S.C.), affd. (1996), 76 B.C.A.C. 215; 125 W.A.C. 215; 19 B.C.L.R.(3d) 196 (C.A.), refd to. [para. 47].

Koch v. Slave Lake Jewellers Ltd. et al. (2001), 290 A.R. 329 (Q.B.), refd to. [para. 47].

Rolland v. Limb, 1992 CarswellOnt 2950 (Gen. Div.), refd to. [para. 47].

Graham v. 7 Eleven Canada Inc. et al., [2003] O.T.C. 127 (Sup. Ct.), refd to. [para. 47].

Peterson v. Windsor (City) et al., [2006] O.T.C. 211; 27 M.P.L.R.(4th) 129 (Sup. Ct.), refd to. [para. 47].

Bongiardina et al. v. Vaughan (City) (2000), 135 O.A.C. 154; 49 O.R.(3d) 641 (C.A.), refd to. [para. 48].

Bongiardina v. York (Regional Municipality) - see Bongiardina et al. v. Vaughan (City).

Commerford et al. v. Board of School Commissioners of Halifax et al., [1950] 2 D.L.R. 207 (N.S.S.C.), refd to. [para. 50].

Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen. Div.), dist. [para. 51].

Moody v. Toronto (City) et al. (1996), 15 O.T.C. 122; 31 O.R.(3d) 53 (Gen. Div.), dist. [para. 51].

Brazzoni v. Timmins (City), [1992] O.J. No. 254 (C.A.), dist. [para. 52].

Selig v. Cook's Oil Co. et al. (2005), 230 N.S.R.(2d) 198; 729 A.P.R. 198 (C.A.), refd to. [para. 56].

Cook's Oil Co. v. Parkhill Construction (1980) Ltd. - see Selig v. Cook's Oil Co. et al.

Pearson v. Maple Ridge (District) (1994), 52 B.C.A.C. 79; 86 W.A.C. 79 (C.A.), refd to. [para. 68, footnote 3].

Pictou (Municipality) v. Geldert, [1893] A.C. 524 (P.C.), refd to. [para. 71].

Coleman v. Halifax (City), [1915] N.S.J. No. 10 (S.C. en banc), refd to. [para. 72].

Pelham v. Halifax (City) (1972), 7 N.S.R.(2d) 300 (T.D.), refd to. [para. 72].

Halifax (City) v. Tobin (1914), 50 S.C.R. 404, refd to. [para. 72].

Sydney (City) v. Slaney (1919), 59 S.C.R. 232, refd to. [para. 73].

Barratt v. North Vancouver (Municipality), [1980] 2 S.C.R. 418; 33 N.R. 293, refd to. [para. 77].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), refd to. [para. 79].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 80].

Just v. British Columbia (1991), 60 B.C.L.R.(2d) 209 (S.C.), refd to. [para. 83, footnote 4].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 84].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, affing. (1992), 108 N.S.R.(2d) 254; 294 A.P.R. 254 (C.A.), refd to. [paras. 84, 92].

Restoule et al. v. Strong (Township) (1999), 123 O.A.C. 346 (C.A.), refd to. [para. 112].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 117].

O'Keefe v. Glace Bay (Town) (1985), 68 N.S.R.(2d) 351; 159 A.P.R. 351 (T.D.), refd to. [para. 123].

Block v. Halifax (City) (1996), 148 N.S.R.(2d) 297; 429 A.P.R. 297 (S.C.), refd to. [para. 123].

Scott v. New Glasgow (Town) (2001), 196 N.S.R.(2d) 258; 613 A.P.R. 258 (S.C.), refd to. [para. 123].

McGuire v. Digby (Town), [2006] N.S.R.(2d) Uned. 132 (S.C.), refd to. [para. 124].

Lessard et al. v. Timmins (City), [2001] O.T.C. 1025 (Sup. Ct.), refd to. [para. 126].

Bleau v. Nepean (City), [1983] O.J. No. 315 (H.C.), refd to. [para. 126].

Chuhay v. Toronto (City), [2003] O.J. No. 4552 (Sup. Ct.), refd to. [para. 126].

Ondrade v. Toronto (City), [2006] O.T.C. 416 (Sup. Ct.), refd to. [para. 126].

Beattie v. Bow Island (Town) (1965), 53 W.W.R.(N.S.) 608 (Alta. T.D.), refd to. [para. 126].

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 307, sect. 308 [para. 99]; sect. 312(1), sect. 312(3) [paras. 74, 99]; sect. 344 [para. 66].

Occupiers' Liability Act, S.N.S. 1996, c. 27, sect. 2 [para. 45].

Authors and Works Noticed:

Boghosian, David G., and Davison, J. Murray, The Law of Municipal Liability in Canada (1999), §§ 3.210 [para. 128]; 3.6, 3.7 [para. 70].

Di Castri, Victor, Occupiers' Liability (1981), generally [para. 46, footnote 2].

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2nd Ed.) (2003 Looseleaf Supp.), § 237.41 [para. 127].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), §§ 5.3, 5.4 [para. 12].

Williston, W.B., and Rolls, R.J., The Conduct of an Action (1982), pp. 47, 48 [para. 11].

Counsel:

Robert B. Carter, for the plaintiff;

Kevin Quigley, for Withrow's Pharmacy Halifax (1999) Ltd.;

E. Roxanne MacLaurin, for Halifax Regional Municipality.

These applications were heard on April 9, 2008, at Halifax, N.S., before Beveridge, J., of the Nova Scotia Supreme Court, who delivered the following judgment on August 28, 2008.