Koch v. Slave Lake Jewellers Ltd. et al., (2001) 290 A.R. 329 (QB)

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 17, 2001
• Citations: (2001), 290 A.R. 329 (QB);2001 ABQB 445

Koch v. Slave Lake Jewellers Ltd. (2001), 290 A.R. 329 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. MY.108

Margaret Koch (plaintiff) v. Slave Lake Jewellers Ltd., Winston Investments Ltd. and Joe Doe (defendants) and Slave Lake Jewellers Ltd. and Winston Investments Ltd. (third parties)

(Action No. 9903 02127; 2001 ABQB 445)

Indexed As: Koch v. Slave Lake Jewellers Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Burrows, J.

May 22, 2001.

Summary:

The plaintiff slipped and fell on a sidewalk adjacent to the defendant's leased business premises. The plaintiff sued the defendant, claiming that it breached its duty of care under the Occupiers' Liability Act and the common law. The defendant applied for summary judgment to dismiss the plaintiff's claim.

The Alberta Court of Queen's Bench granted the defendant summary judgment and dismissed the plaintiff's action. It was plain and obvious that the defendant was not an occupier within the meaning of the Occupiers' Liability Act. Further, it was plain and obvious that the defendant did not owe a common law duty to the plaintiff to keep the sidewalk clear of snow and ice.

Torts - Topic 78

Negligence - Duty of care - Effect of statutory precautions or safeguards on the scope of the duty of care - The defendant leased business premises - A municipal bylaw required all occupants of properties to remove all snow, ice and dirt from an adjacent sidewalk - The defendant's lease required it to comply with the bylaw - The plaintiff slipped and fell on the sidewalk adjacent to the defendant's premises - She claimed that the defendant owed her a duty of care to keep the sidewalk clear of ice and snow - The Alberta Court of Queen's Bench dismissed the plaintiff's claim - The defendant did not owe a duty of care to the plaintiff by reason of the existence of the obligation created by the bylaw - A common law duty of care could not have arose by reason of the defendant having undertaken to clean the sidewalk - Further, the fact that the defendant's customers could not enter its premises without using the sidewalk did not create a duty of care on the defendant to keep the sidewalk safe - See paragraphs 11 to 23.

Torts - Topic 3554

Occupiers' liability or negligence for dangerous premises - Occupier and premises defined - Respecting sidewalks - The defendant leased business premises - A municipal bylaw required all occupants of properties to remove all snow, ice and dirt from an adjacent sidewalk - The defendant's lease required it to comply with the bylaw - The plaintiff slipped and fell on the sidewalk adjacent to the defendant's premises - She sued the defendant under the Occupiers' Liability Act - The Alberta Court of Queen's Bench held that the defendant was not an "occupier" of the sidewalk as defined by s. 1(c) of the Act - Although the defendant might have had some responsibility for and control over the sidewalk's condition, it did not have control over the activities conducted on, or the persons allowed to enter, the sidewalk as required by the definition of "occupier" - See paragraphs 7 to 10.

Torts - Topic 3588

Occupiers' liability or negligence for dangerous premises - Negligence of occupier -Sidewalks, walkways, ramps, etc. - [See Torts - Topic 78 ].

Torts - Topic 3712.5

Occupiers' liability or negligence for dangerous premises - Invitees - Liability of particular occupiers (incl. duty and standard of care) - Sidewalks, walkways, ramps, etc. - [See Torts - Topic 78 ].

Cases Noticed:

Chong v. Flynn (1998), 233 A.R. 120 (Q.B.), refd to. [para. 12].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 12].

Edgar v. Canadian Imperial Bank of Commerce and M & B Industrial Cleaners Ltd. (1977), 6 A.R. 104 (N.W.T.C.A.), refd to. [para. 12].

Selkirk v. Lesam Hotels Ltd. et al. (1999), 262 A.R. 1 (Q.B.), refd to. [para. 17].

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67 (C.A.), refd to. [para. 24].

Statutes Noticed:

Occupiers' Liability Act, R.S.A. 1980, c. O-3, sect. 1(c) [para. 7].

Authors and Works Noticed:

Klar, Lewis N., Tort Law (2nd Ed. 1996), p. 268 [para. 12].

Counsel:

Lorraine E. Stgreitmeier (Berndt & Associates), for the plaintiff;

Galan T. Lund (Parlee McLaws), for the defendant, Slave Lake Jewellers Ltd.;

other parties did not participate in the application.

This application was heard on May 17, 2001, by Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on May 22, 2001.