Pauk v. Catholic Parish of Saint Nykolaja of Greek Ruthenian Rite To Rome et al., (2006) 403 A.R. 311 (QB)

• Judge: Marceau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 17, 2006
• Citations: (2006), 403 A.R. 311 (QB);2006 ABQB 487

Pauk v. Catholic Parish of Saint Nykolaja (2006), 403 A.R. 311 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JL.029

Leona Pauk and Peter Pauk (plaintiffs/respondents) v. The Catholic Parish of Saint Nykolaja of Greek Ruthenian Rite to Rome, Ruthenian Greek Catholic Parish of St. Nicholas, St. Nicholas Catholic Ukrainian Association and the St. Peter's Cemetery Company (defendants/appellants)

(0203 09858; 2006 ABQB 487)

Indexed As: Pauk v. Catholic Parish of Saint Nykolaja of Greek Ruthenian Rite To Rome et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Marceau, J.

June 27, 2006.

Summary:

While one of the plaintiffs was visiting a cemetery, a gravestone allegedly fell off its base onto her leg. The title to the cemetery was in the name of St. Peter's Cemetery Co. The cemetery was located across the road from the Catholic Parish of Saint Nykolaja of Greek Ruthenian Rite to Rome (the Church). A hall and land situated next to the cemetery was owned by the Ruthenian Greek Catholic Parish of St. Nicholas and the St. Nicholas Catholic Ukrainian Association (the Association). The plaintiffs brought an action against the St. Peter's Cemetary Co., the Church and the Association. The Church and the Association applied for summary judgment to dismiss the action against them. A Master dismissed the application. The Church and the Association appealed.

The Alberta Court of Queen's Bench allowed the appeal and dismissed the action against the Church and the Association.

Torts - Topic 3551

Occupiers' liability or negligence for dangerous premises - Occupier and premises defined - Occupier defined - While one of the plaintiffs was visiting a cemetery, a gravestone allegedly fell off its base onto her leg - The title to the cemetery was in the name of the St. Peter's Cemetery Co. - The cemetery property was located across the road from a church - The plaintiffs argued that the church was an occupier of the cemetery under s. 1(c)(ii) of the Occupiers' Liability Act - The Alberta Court of Queen's Bench held that there was no evidence that the church was an occupier at the time that the plaintiff was on the cemetery grounds - The plaintiffs could not establish that the church had control over the activities conducted on cemetery grounds except for an annual event referred to as the "blessing of the stones" - For that brief period the church might be an occupier - However that occupation was a temporary event - The plaintiff was not at the cemetery when such a service was being conducted - See paragraphs 38 to 54.

Cases Noticed:

Cathcart v. Sun Life of Canada, [2002] A.R. Uned. 553; 8 Alta. L.R.(4th) 292; 2002 ABQB 827, refd to. [para. 12].

German v. Major (1985), 62 A.R. 2; 39 Alta. L.R.(2d) 270 (C.A.), refd to. [para. 13].

Zebroski v. Jehovah's Witnesses (1988), 87 A.R. 229 (C.A.), leave to appeal dismissed (1989), 99 N.R. 227; 94 A.R. 320 (S.C.C.), refd to. [para. 14].

Koch v. Slave Lake Jewellers Ltd. et al. (2001), 290 A.R. 329; 2001 ABQB 445, refd to. [para. 24].

Meier v. Qualico Developments Ltd., Walker Newby & Associates Ltd., Johnson Equipment Services Ltd. and Battle (1982), 40 A.R. 493 (Q.B.), revd. (1984), 56 A.R. 48; 34 Alta. L.R.(2d) 341 (C.A.), refd to. [para. 30].

Bennett v. Kailua Estates Ltd. et al. (1997), 86 B.C.A.C. 228; 142 W.A.C. 228 (C.A.), refd to. [para. 31].

Olson v. Olson, [2003] 7 W.W.R. 12; 320 A.R. 379; 288 W.A.C. 379; 36 R.F.L.(5th) 196; 225 D.L.R.(4th) 735; 14 Alta. L.R.(4th) 104; 2003 CarswellAlta 254; 2003 ABCA 56, refd to. [para. 47].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 154 C.C.C.(3d) 97; 199 D.L.R.(4th) 193; 42 C.R.(5th) 1; 82 C.R.R.(2d) 247; 2001 CarswellOnt 1702; 2001 SCC 32, refd to. [para. 48].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 48].

Suncor Inc. v. Canada Wire and Cable Ltd. (1993), 7 Alta. L.R.(3d) 182; 15 C.P.C.(3d) 201 (Q.B.), refd to. [para. 56].

Alberta (Treasury Branches) v. Ghermezian et al. (1999), 246 A.R. 178; 1999 ABQB 437, refd to. [para. 56].

Counsel:

Richard J. Hunka (Chatwin Cox Michalyshyn LLP), for the defendants/appellants, the Catholic Parish of Saint Nykolaja of Greek Ruthenian Rite To Rome, Ruthenian Greek Catholic Parish of St. Nicholas, St. Nicholas Catholic Ukrainian Association;

Jay L. Bowen (Duncan & Craig LLP), for the plaintiffs/respondents, Leona Pauk and Peter Pauk;

Louis M.H. Belzil (Shores Belzil Jardine), for the defendant, St. Peter's Cemetery Co.

This appeal was heard on May 17, 2006, before Marceau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on June 27, 2006.