Ryan v. Victoria (City) et al., (1999) 117 B.C.A.C. 103 (SCC)

• Judge: Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 28, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 117 B.C.A.C. 103 (SCC);191 WAC 103;[1999] 1 SCR 201;1999 CanLII 706 (SCC);168 DLR (4th) 513;[1999] 6 WWR 61;59 BCLR (3d) 81;117 BCAC 103;234 NR 201;44 CCLT (2d) 1;JE 99-357;[1996] BCJ No 2083 (QL);[1999] SCJ No 7 (QL);133 WAC 40;[1999] ACS no 7;40 MVR (3d) 1;50 MPLR (2d) 1;85 ACWS (3d) 208

Ryan v. Victoria (1999), 117 B.C.A.C. 103 (SCC);

   191 W.A.C. 103

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] B.C.A.C. TBEd. JA.044

Murray Ryan (appellant) v. The Corporation of the City of Victoria, The Esquimalt and Nanaimo Railway Company and Canadian Pacific Limited/Canadien Pacifique Limitée (respondents)

(25704)

Indexed As: Ryan v. Victoria (City) et al.

Supreme Court of Canada

Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.

January 28, 1999.

Summary:

The plaintiff motorcyclist attempted to cross a railway line running along a city street. The front wheel of his motorcycle caught in the flangeways of the railway tracks. He was thrown or fell off and was injured. The motorcyclist sued the city and two railway companies. The trial judge found (1) the city and railways negligent for failing to warn of the hazard; (2) the rail­ways negligent for failing to reduce the width of the flangeways or install flangeway fillers; and (3) the railways liable in nui­sance. The trial judge apportioned liability equally among the three defendants. The city and railways appealed.

The British Columbia Court of Appeal, in a judgment reported 82 B.C.A.C. 40; 133 W.A.C. 40, allowed the appeal in part. The court affirmed that the city and railways were negligent for failing to warn of the obstacle created by the flangeways. The court held that the railways were not liable in public nuisance, accepting the defence of statutory authority. The court also overturned the finding that the railways were negligent respecting the width of the flangeways, where the railways complied with all regu­latory and administrative safety standards. The court substituted a finding that the motorcyclist was 50 percent contributorily negligent. The motorcyclist appealed, sub­mitting that the Court of Appeal erred in finding that the railways were not negligent respecting the width of the flangeways, erred in finding that the width of the flangeways did not give rise to liability for public nui­sance, and erred in reversing the trial judge's findings respecting contributory negligence.

The Supreme Court of Canada allowed the appeal. The court set aside the longstanding "special rule" giving railways privileged status respecting the law of negligence and held that railways were subject to the ordi­nary principles of negligence. In the face of a known hazard, the failure of the railways to reduce the width of the flangeways or use flangeway fillers on the atypical "highway crossing" constituted negligence. The appel­late court erred in accepting the defence of statutory authority to absolve liability for public nuisance, where it was not "practically impossible" for the railways to avoid the nuisance. Finally, the appellate court erred in interfering with the trial judge's finding that the motorcyclist was not contributorily negli­gent.

Railways - Topic 5204

Operation - Highway or street crossings - Duty of care - What constitutes special circumstances - The Supreme Court of Canada held that it was time to set aside the "special rule" at common law which placed railways in a privileged position within the law of negligence - Previously, a railway complying with the requirements imposed on it by statute, regulation or administrative order was under no further obligation to act in an objectively rea­sonable manner, unless there existed special or exceptional circumstances, in which event the common law duty of care required additional precautions or safe­guards - The "special rule", which dated back to the turn of the 20th century, was no longer justified in principle and had lost its relevance - Accordingly, "a railway, like any other company or individual, is subject to generally applicable principles of negligence" - See paragraphs 28 to 34.

Railways - Topic 5217

Operation - Highway or street crossings - Negligence - Defences - Statutory authority - The Supreme Court of Canada set aside the "special rule" at common law which provided that railways complying with the requirements imposed on it by statute, regulation or administrative order were under no further obligation to act in an objectively reasonable manner, unless there existed special or exceptional circum­stances, in which event the common law duty of care required additional precautions or safeguards - Railways were now subject to the general principles of negligence - The court stated that "compliance with a statutory standard of care does not abro­gate or supersede the obligation to comply with the common law standard of care. The requirements are concurrent, and each carries its own penalty for breach. How­ever, in appropriate circumstances, com­pliance with statutory standards may en­tirely satisfy the common law standard of care and thus absolve a defendant of li­ability in negligence." - See paragraphs 28 to 36.

Railways - Topic 5217

Operation - Highway or street crossings - Negligence - Defences - Statutory authority - A motorcycle's front wheel caught in the flangeway of railway tracks running along a city street, injuring the motorcyclist - In 1982, the railways had widened the flange­way to four inches (minimum allowable was 2.5 inches), complying with all regu­latory and administrative safety standards -The railways did not install flange fillers (not statutorily required) - The railways knew (or should have known) of three similar accidents between 1982 and 1986 involving two-wheeled vehicles - The railways had a discretion to reduce the flangeway width to 2.5 inches - The Supreme Court of Canada held that the railways were negligent notwithstanding compliance with regulatory safety standards - Because of the hazard created, the known risk and the availability of remedial measures (narrower flangeways or flange fillers), it was negligence not to take precautions over and above those required by statute and regulation - See paragraphs 41 to 51.

Torts - Topic 1265

Nuisance - Particular nuisances - Railway lines - A motorcycle's front wheel caught in the flangeways of the railway tracks running along a city street, injuring the motorcyclist - The trial judge held that the configuration and design of the tracks constituted an unreasonable interference with the public's right of access (i.e., nuisance) - The appellate court agreed that there was unreasonable interference, but held that the defence of statutory authority absolved liability where "the flangeways were an inseparable consequence of requir­ing the tracks to be laid at street grade flush with street level and the roadway paved between the rails" - The Supreme Court of Canada stated that statutory au­thority provided a defence only if the activity was authorized by statute and the railways proved that the nuisance was the "inevitable result" or consequence of exer­cising that authority - Since the railways had a discretion to reduce the width of the flangeways to 2.5 inches (1.5 inches nar­rower than width chosen) or install flange­way fillers, it was not "practically impos­sible" for the railways to avoid the nui­sance - The failure to minimize the hazard was not an "inevitable consequence" of exercising regulatory authority - Ac­cordingly, the appellate court erred in accepting the defence of statutory authority - See paragraphs 52 to 56.

Torts - Topic 1800

Nuisance - Defences - Statutory authority - [See Torts - Topic 1265 ].

Torts - Topic 6610

Defences - Contributory negligence - Par­ticular cases - Motor vehicle accidents - A motorcycle's front wheel caught in the flangeways of railway tracks running along a city street, injuring the motorcyclist - The trial judge rejected a claim of con­tributory negligence on the motorcyclist's part - The appellate court held that the motorcyclist was 50 percent contributorily negligent, for choosing to keep the tracks on his right when it should have been apparent that the tracks were "drifting" or "meandering" to his left with the obvious result of placing him in the oncoming traffic lane - Had he kept a proper lookout and appreciated the effect of his course sooner, he would have crossed the tracks on his right in a slow, safe manner - Fur­ther, he crossed at an excessive speed - The Supreme Court of Canada held that absent palpable and overriding error by the trial judge, the appellate court erred in interfer­ing with the trial judge's findings on con­tributory negligence - Accordingly, the court restored the trial judge's determi­nation of no contributory negligence - See paragraph 57.

Torts - Topic 6822

Defences - Statutory compliance, authority or immunity - Statutory compliance - [See second Railways - Topic 5217 ].

Cases Noticed:

Paskivski et al. v. Canadian Pacific Ltd. et al., [1976] 1 S.C.R. 687; 5 N.R. 1, consd. [para. 15].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, consd. [para. 16].

Nova Mink Ltd. v. Trans-Canada Airlines, [1951] 2 D.L.R. 241 (N.S.C.A.), refd to. [para. 21].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), appld. [para. 22].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; 8 C.L.R. 1; 10 D.L.R.(4th) 641, appld. [para. 22].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, refd to. [para. 22].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 22].

Wade v. Canadian National Railway, [1978] 1 S.C.R. 1064; 17 N.R. 378; 22 N.S.R.(2d) 540; 31 A.P.R. 540, refd to. [para. 25].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241; 91 D.L.R.(4th) 289; 11 C.C.L.T.(2d) 1, refd to. [para. 26].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425; 143 D.L.R.(3d) 9, refd to. [para. 29].

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241; 25 Alta. L.R.(3d) 297; 8 M.V.R.(3d) 1; [1995] 3 W.W.R. 1; 121 D.L.R.(4th) 222; 23 C.C.L.T.(2d) 89, refd to. [para. 29].

Grand Trunk Railway v. McKay (1903), 34 S.C.R. 81, consd. [para. 31].

Lake Erie & Detroit River Railway v. Barclay (1900), 30 S.C.R. 360, consd. [para. 31].

Harris v. Canadian Pacific Ltd. (1989), 59 D.L.R.(4th) 151 (B.C.C.A.), refd to. [para. 34].

Anderson v. Canadian National Railway, [1944] O.R. 169 (C.A.), refd to. [para. 35].

Richardson v. Surrey (Dist.) (1990), 43 B.C.L.R.(2d) 210 (C.A.), refd to. [para. 36].

Bux v. Slough Metals Ltd., [1974] 1 All E.R. 262 (C.A.), refd to. [para. 36].

Canadian National Railway v. Vincent, [1979] 1 S.C.R. 364; 29 N.R. 451, consd. [para. 37].

Geddis v. Bann Reservoir Proprietors (1878), 3 App. Cas. 430 (H.L.), refd to. [para. 39].

Chessie v. Irving (J.D.) Ltd. (1982), 42 N.B.R.(2d) 192; 110 A.P.R. 192; 22 C.C.L.T. 89 (C.A.), refd to. [para. 52].

Manchester (City), Lord Mayor, Aldermen and Citizens of the, Re, [1930] A.C. 171 (H.L.), refd to. [para. 54].

British Columbia Pea Growers Ltd. v. Portage La Prairie (City), [1966] S.C.R. 150, refd to. [para. 54].

Schenck v. Ontario; Rokeby v. Ontario, [1987] 2 S.C.R. 289; 79 N.R. 317; 23 O.A.C. 82, refd to. [para. 54].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 57].

Statutes Noticed:

Railway Act, R.S.C. 1906, c. 37, sect. 235 [para. 13].

Railway Act, R.S.C. 1985, c. R-3, sect. 367(4) [paras. 14, 38].

Railway Act Regulations (Can.), Railway-Highway Crossing at Grade Regulations, SOR/80-748, sect. 7 [para. 13].

Railway Act Regulations (Can.), Standard Regulations Respecting the Construction of Crossings at Grade, 55 B.T.C. II (Feb. 1, 1965), General Order E-4, sect. 1(3), sect. 6 [para. 13].

Railway-Highway Crossing at Grade Regu­lations - see Railway Act Regulations (Can.).

Standard Regulations Respecting the Construction of Crossings at Grade - see Railway Act Regulations (Can.).

Authors and Works Noticed:

Fridman, G.H.L., The Law of Torts in Canada (1989), vol. 1, p. 168 [para. 52].

Klar, Lewis N., Tort Law (2nd Ed. 1996), p. 247 [para. 27].

Linden, Allen M., Canadian Tort Law (6th Ed. 1997), pp. 219 [para. 29]; 275 [para. 24].

Counsel:

Joseph J. Arvay, Q.C., and Aaron A.G. Gordon, for the appellant;

Richard R. Sugden, Q.C., and Craig P. Dennis, for the respondent, Corporation of the City of Victoria;

William M. Everett, Q.C., and W.S. Mac­farlane, for the respondents, Esquimalt and Nanaimo Railway Co. and Canadian Pacific Ltd.

Solicitors of Record:

Gordon & Velletta, Victoria, British Columbia, for the appellant;

Sugden, McFee & Roos, Vancouver, British Columbia, for the respondent, The Corporation of the City of Victoria;

Lawson, Lundell & McIntosh, Vancouver, British Columbia, for the respondents, The Esquimalt and Nanaimo Railway Company and Canadian Pacific Limited/ Canadien Pacifique Limitée.

This appeal was heard on June 17, 1998, before Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On January 28, 1999, the judgment of the Court was delivered in both official lan­guages by Major, J.