Duret v. Calgary (City) et al., (1990) 110 A.R. 304 (QB)

• Judge: Prowse, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 07, 1990
• Citations: (1990), 110 A.R. 304 (QB)

Duret v. Calgary (1990), 110 A.R. 304 (QB)

MLB headnote and full text

Maryvonne Reta Duret (plaintiff) v. City of Calgary and Credit Foncier Franco-Canadien and Credit Foncier Trust, operating as Montreal Trust (defendants) and Credit Foncier Franco-Canadien and Credit Foncier Trust, operating as Montreal Trust (third parties)

(Action No. 8701-06191)

Indexed As: Duret v. Calgary (City) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Prowse, J.

November 7, 1990.

Summary:

The plaintiff fell at 8:00 a.m. on a slippery sidewalk wheelchair ramp. A winter storm had stopped just shortly before. The plaintiff brought an action for damages against the city for gross negligence (Municipal Government Act, s. 404) in failing to clear the sidewalk and, alternatively, for breaching its statutory duty under s. 184 respecting construction of the ramp. The city pleaded a lack of required notice as a bar to both claims.

The Alberta Court of Queen's Bench dismissed the action. The court stated that it was an appropriate case to exercise its discretion to not bar the claims notwithstanding the lack of statutory notice. The court stated that the city did not breach s. 184 in constructing the ramp and was not grossly negligent in failing to clear the sidewalk before 8:00 a.m. when the storm had just stopped.

Municipal Law - Topic 1804

Liability of municipalities - Negligence - Standard of care - Maintenance of sidewalks - The plaintiff fell at 8:00 a.m. on a snow-covered sidewalk wheelchair ramp - A storm had just stopped shortly before and the city had not yet cleared the sidewalk - The plaintiff claimed the city was liable for gross negligence (Municipal Government Act, s. 404) or for breaching its s. 184 duty respecting construction of the ramp - The Alberta Court of Queen's Bench stated that the ramp was properly constructed and there was no gross negligence - The court noted that there was no unreasonable delay in clearing the sidewalk where the storm had stopped only shortly before the 8:00 a.m. fall.

Municipal Law - Topic 6248

Actions against municipalities - Conditions precedent - Notice of action or accident - Curative provisions - A plaintiff fell on a snow-covered sidewalk wheelchair ramp shortly after a storm ended - The plaintiff claimed the city was liable for breach of duty under s. 184 of the Municipal Government Act respecting construction of the ramp or, alternatively, grossly negligent under s. 404 for failure to clear the sidewalk - A s. 184 claim required notice to the city within 60 days; a s. 404 claim required notice within 21 days - Notice was given late, therefore the claims were barred - The Alberta Court of Queen's Bench exercised its discretion under s. 406 to allow the claims to proceed absent proper notice, because the plaintiff had a reasonable excuse and the city was not prejudiced by the lack of timely notice - See paragraphs 14 to 34.

Cases Noticed:

Lassen v. Calgary, [1985] 5 W.W.R. 65; 60 A.R 111 (C.A.), appld. [para. 25].

Kaughman v. Calgary (1968), 63 W.W.R.(N.S.) 367, refd to. [para. 25].

Varty v. Rimbey (Town) (1953), 7 W.W.R.(N.S.) 681, affd. 12 W.W.R.(N.S.) 256, refd to. [para. 26].

Fogg v. Kenora (Town), [1940] O.R. 421, dist. [para. 48].

Grusie v. Stirling (1976), 71 D.L.R.(3d) 617, refd to. [para. 54].

Harper v. Prescott, [1940] 4 D.L.R. 225, refd to. [para. 56].

Ancvirs v. London (City) (1987), 63 O.R.(2d) 599, refd to. [para. 69].

Bleau v. Nepean (1983), 21 M.P.L.R. 217, refd to. [para. 69].

Statutes Noticed:

Municipal Government Act, R.S.A. 1980, c. M-26, sect. 184(1) [para. 16]; sect. 404(1), sect. 404(2) [para. 14]; sect. 405 [para. 17]; sect. 406(1), sect. 406(2) [para. 20].

Authors and Works Noticed:

American Public Works Association, Guideline for the Design and Construction of Curb-ramps for the Physically Handicapped, generally [para. 38].

Counsel:

Patricia L. Daunais, for the plaintiff;

John C. Anderson, for the defendant, the City of Calgary.

This action was heard before Prowse, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on November 7, 1990.