Houle et al. v. Calgary (City) and Canada Safeway Ltd., (1985) 60 A.R. 366 (CA)

• Judge: McDermid, Harradence and Belzil, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 17, 1985
• Citations: (1985), 60 A.R. 366 (CA)

Houle v. Calgary (1985), 60 A.R. 366 (CA)

MLB headnote and full text

Houle and Houle v. Calgary, City of and Canada Safeway Limited

(No. 15541)

Indexed As: Houle et al. v. Calgary (City) and Canada Safeway Ltd.

Alberta Court of Appeal

McDermid, Harradence and Belzil, JJ.A.

June 17, 1985.

Summary:

In 1955 the City of Calgary built an electrical power transformer substation on the parking lot of a Canada Safeway store. The substation was surrounded by wooden picket fence 10.5 feet high over which children could easily climb out of curiosity or to retrieve play-things and other objects. In 1979, when the store was unused by Canada Safeway, the plaintiff eight year old boy climbed the fence with the assistance of his ten year old brother, touched the live wire and was severely burned, losing an arm. He brought an action against the City of Calgary and Canada Safeway for damages. The city added the boy's mother as a third party. The Alberta Court of Queen's Bench, in a decision reported in 44 A.R. 271, allowed the action against the City of Calgary, but dismissed the action against Canada Safeway. Neither the boy nor his mother was found to be contributorily negligent. The city appealed. The boy cross-appealed respecting, inter alia, damages for loss of prospective earnings.

The Alberta Court of Appeal dismissed the appeal. The Court of Appeal affirmed that the city was liable for the boy's injuries. The Court of Appeal allowed the cross-appeal in part and reduced the damages for loss of prospective earnings by 20%.

Damages - Topic 1550

General damages for personal injury - Prospective loss of wages or earnings - An eight year old boy lost his arm in an accident - In determining damages for loss of prospective earnings, the trial judge considered the probability that the boy might earn more because of the accident than he might have had the accident not occurred (i.e. been required to seek a higher education because of the inability to do manual work) - The Alberta Court of Appeal held that the possibility that the boy might earn more should have been assessed as a contingency, not a probability - The court reduced the damages by 20% - See paragraphs 36 to 46.

Torts - Topic 3551

Occupier's liability for dangerous premises - Occupier, defined - A boy was injured by electricity after climbing into a fenced electrical power transformer substation built by the City of Calgary on the parking lot of a Canada Safeway store - The Alberta Court of Appeal held that for purposes of determining liability, the city was an occupier of the substation under the Occupiers' Liability Act - Likewise the substation constituted a premises and the boy a trespasser - The court held that the Act applied, not ordinary negligence principles - See paragraphs 5 to 8.

Torts - Topic 3552

Occupier's liability for dangerous premises - Premises, defined - The Alberta Court of Appeal held that an electrical power transformer substation was included in the definition of premises in s. 1(d)(ii) of the Occupiers' Liability Act - See paragraph 6.

Torts - Topic 3852

Occupier's liability for dangerous premises - Trespassers - What constitute - An eight year old boy was injured by electricity after climbing into a fenced electrical power transformer substation built by the City of Calgary on the parking lot of a Canada Safeway store - The Alberta Court of Appeal held that the boy was a trespasser, because his presence on the substation was unlawful - See paragraph 8.

Torts - Topic 3855

Occupier's liability for dangerous premises - Trespassers - Standard of care of occupier - An eight year old boy climbed a 10.5 foot high fence around an electrical power transformer substation - He contacted uninsulated electrical wires and was injured - There was a 2" x 10" plank around the bottom of the fence and crossarms supporting the metre box on the pole in the fence - The height was reduced to 6'6" for climbing purposes because the top of the plank could be used as a step - The combination of plank, exterior pole and crossarm provided a way to climb over the fence - The Alberta Court of Appeal held that the fence was unreasonable to protect children from the danger - The City was liable under s. 13 of the Occupiers' Liability Act for the boy's injuries - See paragraphs 23 to 34.

Torts - Topic 3855

Occupier's liability for dangerous premises - Trespassers - Standard of care of occupier - Warning or knowledge of danger - The Alberta Court of Appeal discussed whether an occupier of dangerous premises would have constructive knowledge of the presence of a child trespasser - A city built and maintained an electrical power transformer substation in an abandoned supermarket parking lot in a suburban residential area - The parking lot had become a playground - The Court found that the city knew or ought to have known that the substation could and did attract children - See paragraphs 11 to 17.

Torts - Topic 4509

Dangerous activities - Standard of care - General - A boy was injured by electricity after climbing into a fenced electrical power transformer substation built by the City of Calgary on the parking lot of a Canada Safeway store - The Alberta Court of Appeal held that liability should be determined according to the Occupiers' Liability Act, not ordinary negligence principles, because the city was an occupier, the substation a premises, and the boy a trespasser as defined in the Act - See paragraphs 5 to 8.

Torts - Topic 4532

Dangerous activities - Electricity - Power transmission lines - General - An eight year old boy climbed a 10.5 foot high fence around an electrical power transformer substation - He contacted uninsulated electrical wires and was injured - The Alberta Court of Appeal applied the Occupiers' Liability Act and found the city, which built and maintained the substation, liable for the boy's injuries.

Torts - Topic 6612

Defences - Contributory negligence - Children - A boy, eight years and four months old, with the assistance of his ten year old brother, climbed over a 10.5 foot high fence around an electrical power transformer substation and was injured by electricity - There were danger and warning signs on the fence - The Alberta Court of Appeal affirmed that the boy was not contributorily negligent - See paragraph 22.

Words and Phrases

Occupier - The Alberta Court of Appeal held that the word "occupier" as found in s. 1(c)(ii) of the Occupiers' Liability Act, R.S.A. 1980, c. O-3, included the City of Calgary as the owner and builder of an electrical power transformer substation - See paragraph 7.

Words and Phrases

Premises - The Alberta Court of Appeal held that the word "premises" as found in s. 1(d)(ii) of the Occupiers' Liability Act, R.S.A. 1980, c. O-3, included an electrical power transformer substation - See paragraph 6.

Words and Phrases

Probable - The Alberta Court of Appeal determined the meaning of the word "probable" in s. 13(3) of the Occupiers' Liability Act, R.S.A. 1980, c. O-3, in the context of constructive knowledge by an occupier of the presence of a child trespasser - See paragraphs 12 to 16.

Words and Phrases

So - The Alberta Court of Appeal determined the meaning of the word "so" as found in "so probable" s. 13(3) of the Occupiers' Liability Act, R.S.A. 1980, c. O-3, in the context of constructive knowledge by an occupier of the presence of a child trespasser - See paragraph 16.

Words and Phrases

Visitor - The Alberta Court of Appeal held that "visitor" as found in s. 1(e) of the Occupiers' Liability Act, R.S.A. 1980, c. O-3, did not include an eight year old boy who climbed into a fenced electrical power transformer substation - See paragraph 8.

Cases Noticed:

M'Glone v. British Railways Board, [1966] S.C.(H.L.), refd to. [para. 5].

Wagon Mound (No. 2), [1966] 2 All E.R. 709, refd to. [para. 14].

Bouvier v. Fee, [1932] S.C.R. 118, refd to. [para. 22].

Moule v. New Brunswick Electric Power Commission (1960), 24 D.L.R.(2d) 305 (S.C.C.), refd to. [para. 29].

Statutes Noticed:

Occupiers' Liability Act, R.S.A. 1980, c. O-3, sect. 1(c)(ii) [para. 7]; sect. 1(d)(ii) [para. 6]; sect. 1(e) [para. 8]; sect. 12 [para. 9]; sect. 13 [paras. 10, 34]; sect. 13(1) [paras. 20, 23]; sect. 13(2) [para. 20]; sect. 13(3) [paras. 12, 16, 18-19].

Authors and Works Noticed:

Shorter Oxford English Dictionary [paras. 13, 16].

Counsel:

A.A. Abougoush and J.M. Shachter, for the appellant;

W.W. Geselbracht, H.W.B. Heumann and J.A. Sutherland, for the respondents, Sean William Houle and Helga Houle;

A.D. Macleod and A.J. McConnell, for the respondent, Canada Safeway Limited.

This appeal was heard before McDermid, Harradence and Belzil, JJ.A., of the Alberta Court of Appeal, whose decision was delivered by McDermid, J.A., on June 17, 1985, at Calgary, Alberta.