Smith v. Saskatoon (City), 2008 SKCA 157

• Judge: Klebuc, C.J.S., Sherstobitoff and Smith, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 11, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKCA 157;(2008), 314 Sask.R. 251 (CA)

Smith v. Saskatoon (2008), 314 Sask.R. 251 (CA);

    435 W.A.C. 251

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. DE.040

Richard James Smith (plaintiff) v. The City of Saskatoon (defendant)

Tracey Paulow and Leonard Paulow (plaintiffs) v. City of Saskatoon and Richard James Smith (defendants)

Lorena Rey (plaintiff) v. City of Saskatoon and Richard James Smith (defendants)

(No. 1470; 2008 SKCA 157)

Indexed As: Smith v. Saskatoon (City)

Saskatchewan Court of Appeal

Klebuc, C.J.S., Sherstobitoff and Smith, JJ.A.

December 3, 2008.

Summary:

Smith owned a duplex in Saskatoon. The Paulows and Rey were tenants. As a result of a fire which destroyed much of the duplex and most of the tenants' contents, Smith, the Paulows, and Rey sued the City of Saskatoon. They alleged the fire was the result of the City's faulty electrical connectors on the overhead power line where the connection was made to the service mast on the outside of the duplex. The tenants also sued Smith for their losses. All three actions were heard together.

The Saskatchewan Court of Queen's Bench, in a decision reported at 295 Sask.R. 138, allowed the actions against the City. The actions against Smith were dismissed. The court awarded damages to Rey of $29,000, to the Paulows of $38,000 and to Smith of $120,000 (subject to his insurer's subrogated claim). The City appealed.

The Saskatchewan Court of Appeal allowed the appeal and dismissed the actions.

Municipal Law - Topic 1801.1

Liability of municipalities - Negligence - Duty of care - [See first Municipal Law - Topic 1818.1 ].

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - Smith owned a duplex in Saskatoon - The Paulows and Rey were tenants - As a result of a fire which destroyed much of the duplex and most of the tenants' contents, Smith, the Paulows, and Rey (the plaintiffs) sued the City of Saskatoon - They alleged that the fire was the result of the City's faulty electrical connectors on the overhead power line where the connection was made to the service mast on the outside of the duplex - The tenants had noticed some electrical problems and had notified Smith, but they had not notified the City - Given the large number of electrical connectors, the City had decided not to inspect the connectors and instead relied on customer complaints to determine whether one had to be replaced (policy decision) - The trial judge allowed the actions - The policy decision was reasonable - However, the plaintiffs were completely unaware that the City relied on them to alert the electrical department of potential problems with the connectors - The Saskatchewan Court of Appeal allowed the City's appeal - The court held that "given the long period of time that the connectors were in widespread use; the lack of any known risk of fire or other serious damage arising from their deterioration; that to not inspect is an industry standard; and the fact that simple common sense should tell any electricity consumer to contact the supplier in case of problems with the supply; there was no evidence upon which the judge could reasonably find a duty on the part of the city to notify its customers that they should contact the City in the case of problems such as they experienced. To put it more simply, since there was, upon the evidence before the trial judge, no known risk of fire or serious damage or other danger arising from the decision not to inspect the connectors except upon complaint, there was no element of foreseeability sufficient to give rise to a duty of care on the part of the City" - See paragraphs 14 to 17.

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - Smith owned a duplex in Saskatoon - The Paulows and Rey were tenants - As a result of a fire which destroyed much of the duplex and most of the tenants' contents, Smith, the Paulows, and Rey (the plaintiffs) sued the City of Saskatoon - They alleged that the fire was the result of the City's faulty electrical connectors on the overhead power line where the connection was made to the service mast on the outside of the duplex - The tenants had noticed some electrical problems and had notified Smith, but they had not notified the City - Given the large number of electrical connectors, the City had decided not to inspect the connectors and instead relied on customer complaints to determine whether one had to be replaced (policy decision) - The trial judge allowed the actions - The policy decision was reasonable - However, the plaintiffs were completely unaware that the City relied on them to alert the electrical department of potential problems with the connectors - The Saskatchewan Court of Appeal allowed the City's appeal - The trial judge erred in finding that the failure to notify or warn electricity consumers to report problems constituted a part of the "operational implementation" of the policy - The implicit decision not to so notify was a part of the policy itself and thus not a decision capable of rendering the city liable in tort - See paragraphs 18 to 23.

Cases Noticed:

Amos v. New Brunswick Electric Power Commission, [1977] 1 S.C.R. 500; 13 N.B.R.(2d) 307; 13 A.P.R. 307, refd to. [para. 11].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 11].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 11].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 13].

Vizbaras et al. v. Hamilton (City), [2005] O.T.C. 1136; 20 M.P.L.R.(4th) 131 (Sup. Ct.), refd to. [para. 16].

Malcolm v. B.C. Transit et al. (1988), 32 B.C.L.R.(2d) 317 (C.A.), refd to. [para. 17].

Counsel:

H.J. Laing & R.C. Nicolay, for Richard Smith;

B.W. Wirth & K.M.K. Bodnarchuk, for the City of Saskatoon;

B.E. Nussbaum, for Lorena Rey and Tracy & Leonard Paulow.

This appeal was heard on September 11, 2008, by Klebuc, C.J.S., Sherstobitoff and Smith, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Sherstobitoff, J.A., on December 3, 2008.