Selkirk v. Lesam Hotels Ltd. et al., (1999) 262 A.R. 1 (QB)

• Judge: Lutz, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 22, 1999
• Citations: (1999), 262 A.R. 1 (QB)

Selkirk v. Lesam Hotels Ltd. (1999), 262 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JL.023

Robert Selkirk (plaintiff/appellant) v. Lesam Hotels Ltd. (defendant/respondent) and The City of Calgary and Barb Lloy (third parties)

(9601-06065)

Indexed As: Selkirk v. Lesam Hotels Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Lutz, J.

March 22, 1999.

Summary:

The plaintiff allegedly slipped and fell on a sidewalk adjacent to the defendant's prop­erty. The sidewalk was owned by the City of Calgary. The City had a bylaw requiring the property owners to clear snow from the sidewalk. The plaintiff sued the defendant for dam­ages. The City of Calgary was joined as a third party. The defendant applied for sum­mary judgment dismissing the plaintiff's action, arguing that the defendant could not be liable for damages for a slip and fall injury under the Occupiers' Liability Act or the common law.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, granted summary judgment dismissing the plaintiff's action. The plaintiff appealed.

The Alberta Court of Queen's Bench allowed the appeal. The court held that it was not manifestly clear and beyond reason­able doubt that there was no bona fide triable issue, that the action was bound to fail or that the action had no prospect of success. The question of whether the defen­dant was an occupier within the meaning of the Occupiers' Liability Act was up to the trial judge to decide. It was also inappropri­ate to dismiss the action at this stage because there could be a common law duty respecting maintenance of the sidewalk, which was also a matter for the trial judge.

Editor's Note: For an appeal decision and a case comment relating to this case see: 261 A.R. 22; 225 W.A.C. 22 and 261 A.R. 24; 225 W.A.C. 24.

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available - The plaintiff sued the defendant for dam­ages following a slip and fall accident on a sidewalk adjacent to the defendant's property - The sidewalk was owned by the City of Calgary, which had a bylaw re­quiring property owners to clear snow from sidewalks - The defendant sought summary judgment dismissing the plain­tiff's action - The Alberta Court of Queen's Bench held that summary judg­ment should not be granted where there were issues for trial - It was up to the trial judge to determine whether the defendant was an occupier within the meaning of the Occupiers' Liability Act - Further, the court held that there could be a common law duty of care owed by the defendant to the plaintiff, which was also a matter for the trial judge.

Practice - Topic 5708

Judgments and orders - Summary judg­ments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Torts - Topic 45

Negligence - Standard of care - Particular persons and relationships - Landowners or occupiers of land - [See Practice - Topic 5702 ].

Torts - Topic 78

Negligence - Duty of care - Effect of municipal bylaws on the scope of the duty of care - [See Practice - Topic 5702 ].

Torts - Topic 3554

Occupiers' liability or negligence for dan­gerous premises - Occupier and premises defined - Respecting sidewalks - [See Practice - Topic 5702 ].

Torts - Topic 3588

Occupiers' liability or negligence for dan­gerous premises - Negligence of occupier -Sidewalks, walkways, ramps, etc. - [See Practice - Topic 5702 ].

Torts - Topic 3712.5

Occupiers' liability or negligence for dan­gerous premises - Invitees - Liability of particular occupiers - Sidewalks, walkways, ramps, etc. - [See Practice - Topic 5702 ].

Cases Noticed:

Pacific Lumber Agency v. Imperial Timber & Trading Co. et al. (1914), 7 W.W.R. 260 (B.C.C.A.), refd to. [para. 3].

Kluane v. Chasse, [1998] A.J. No. 757 (Q.B.), refd to. [para. 3].

Chong v. Flynn (1998), 233 A.R. 120 (Q.B.), refd to. [para. 3].

Collins v. Loblaws Inc. (1996), 148 Nfld. & P.E.I.R. 310; 464 A.P.R. 310 (Nfld. T.D.), refd to. [para. 4].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 6].

Anns v. London Borough Council of Merton, [1978] A.C. 728 (H.L.), refd to. [para. 17].

Snitzer v. Becker Milk Co. (1976), 75 D.L.R.(3d) 649 (Ont. H.C.), refd to. [para. 18].

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. 24].

Saskatchewan Wheat Pool v. Canada (1983), 45 N.R. 425; 143 D.L.R.(3d) 9 (S.C.C.), refd to. [para. 28].

Duncan v. Baddeley (1997), 196 A.R. 161; 141 W.A.C. 161 (C.A.), refd to. [para. 30].

Statutes Noticed:

Occupiers' Liability Act, R.S.A. 1980, c. O-3, generally [para. 1 et seq.].

Counsel:

Not available.

This appeal was heard before Lutz, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing decision on March 22, 1999.