Steele et al. v. Burgos et al., (2010) 535 A.R. 20 (QB)

• Judge: Jeffrey, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 18, 2009
• Citations: (2010), 535 A.R. 20 (QB);2010 ABQB 327

Steele v. Burgos (2010), 535 A.R. 20 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.110

Brenden Robert Frederick Steele an infant by his Father and Next Friend Steven Rory Steele, the said Steven Rory Steele and Her Majesty the Queen in Right of Alberta (plaintiffs) v. Norman Antonio Burgos, Southland Transportation Ltd., Leeanne Ruth Steele, Vic Sharma and The City of Calgary and Millennium Insurance Corporation (defendants) and Norman Antonio Burgos, Southland Transportation Ltd., Leeanne Ruth Steele and Vic Sharma (third parties)

(0401 16744; 2010 ABQB 327)

Indexed As: Steele et al. v. Burgos et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Jeffrey, J.

May 11, 2010.

Summary:

Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle. He suffered severe permanent physical injuries. Brenden sued. The parties agreed on damages of $4,625,000. Southland and the drivers of two of the three parked buses jointly admitted partial responsibility, Southland admitting only vicarious liability for the conduct of its two drivers. One of the drivers was Brenden's mother. The City denied liability. Brenden settled his action. Southland proceeded to trial against the City, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area.

The Alberta Court of Queen's Bench found that the City was not negligent for the absence of Playground Zone signs but was negligent for the absence of No Parking signs. However, the City was exempt from liability for that absence by reason of s. 533 of the Municipal Government Act. In the event that a reviewing court disagreed with the conclusion that the City was statutorily exempt from liability to Brenden, then based upon its relative blameworthiness the court would find the City responsible for 12.5% of the damages Brenden suffered.

Municipal Law - Topic 1801.1

Liability of municipalities - Negligence - Duty of care - Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle - He suffered severe permanent physical injuries - Brenden settled an action - Southland proceeded to trial against the City of Calgary, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area - The Alberta Court of Queen's Bench discussed the duty of care owed by the City - The City admitted that there was sufficient proximity between it and road users to give rise to a prima facie duty of care - In addition, the City owed a duty of care by virtue of s. 532 of the Municipal Government Act - See paragraphs 75 to 78.

Municipal Law - Topic 1801.1

Liability of municipalities - Negligence - Duty of care - Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle - He suffered severe permanent physical injuries - Brenden settled an action - Southland proceeded to trial against the City of Calgary, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area - The Alberta Court of Queen's Bench held that the City was not negligent for the absence of Playground Zone signs but was negligent for the absence of No Parking signs - The City's failure to prohibit parking, given the street's character and its location within the City, created a hazard for users that persisted long after the City both became aware of and had ample opportunity to remedy the hazard - Had the City not had statutory immunity, the court would have found the City in breach of the duty of care it owed - See paragraphs 135 to 150.

Municipal Law - Topic 1818

Liability of municipalities - Negligence - Defences - Statutory authority, immunity or exemption - Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle - He suffered severe permanent physical injuries - Brenden settled an action - Southland proceeded to trial against the City of Calgary, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area - The Alberta Court of Queen's Bench held that the City was exempt from liability for that absence by reason of s. 533 of the Municipal Government Act (MGA) which provided that "A municipality is not liable for damage caused (a) by the presence, absence or type of any ... traffic control device ... adjacent to or in, along or on a road" - Because of the regulating, controlling and guiding effects No Parking signs had on traffic flows and because of their treatment by the Transportation Association of Canada as signs that regulated traffic, the court was satisfied that "No Parking" signs constituted traffic control devices for purposes of the MGA - The statutory exemption in s. 533(a) of the MGA applied on its plain reading, since its constituent elements had been demonstrated - Both kinds of municipal signage constituted traffic control devices and both were absent at the time of the accident - See paragraphs 79 to 95.

Municipal Law - Topic 1818

Liability of municipalities - Negligence - Defences - Statutory authority, immunity or exemption - Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle - He suffered severe permanent physical injuries - Brenden settled - Southland proceeded to trial against the City of Calgary, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area - The City asserted it was exempt from liability under s. 533 of the Municipal Government Act (MGA) - Southland argued that the statutory exemption did not apply because the absence of signage resulted from bad faith or ulterior purposes in the City's signage decisions - The Alberta Court of Queen's Bench rejected Southland's assertion - The court did not find the absence of playground zone signage to have been unreasonable, let alone patently unreasonable, or a demonstration of bad faith - There was no suggestion that the decision was made for ulterior purposes - In the court's view the absence of such signage was not, as Southland framed it, a breach of the City's good faith obligations - With respect to the decision not to place No Parking signs, there was no bad faith, patently unreasonable exercise of discretion or action for ulterior purposes - There was no basis to deny the City its statutory protection - The City was exempt from liability to Brenden by reason of s. 533 of the MGA - See paragraphs 99 to 120.

Municipal Law - Topic 1818

Liability of municipalities - Negligence - Defences - Statutory authority, immunity or exemption - Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle - He suffered severe permanent physical injuries - Brenden settled - Southland proceeded to trial against the City of Calgary, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area - The City asserted it was exempt from liability under s. 533 of the Municipal Government Act (MGA) - Southland argued that the statutory exemption did not apply because the decisions resulting in an absence of signage were pure policy decisions - The Alberta Court of Queen's Bench rejected Southland's assertion - The failure to install No Parking signs was a failure to implement a decision, it was not itself a policy decision - Further, the Traffic Engineer was not applying political or economic considerations - He was considering technical standards and applying his expert or professional opinion - It was no coincidence that such decisions had been delegated to an engineer and, in particular, a traffic engineer - The City's playground zone signage decision(s) therefore were not policy decisions - See paragraphs 121 to 134.

Municipal Law - Topic 1818

Liability of municipalities - Negligence - Defences - Statutory authority, immunity or exemption - Section 533 of the Municipal Government Act (MGA) provided that "A municipality is not liable for damage caused (a) by the presence, absence or type of any ... traffic control device ... adjacent to or in, along or on a road" - The Alberta Court of Queen's Bench stated that "The section 533 exemption is not ousted simply because a different limitation on the scope of the City's duty does not apply. The fact that one exemption does not apply does not thereby also supplant the other. Further, the section 533 exemption is very specific to circumstances of the 'presence, absence or type' of (among other things) traffic control devices. It prevails as a matter of statutory interpretation, the specific overriding the general. Still further, if the duty in section 532 prevails then the exemption in 533 is rendered nugatory. The two sections of the MGA in combination mean, among other things, that a municipality is not liable for the absence of a traffic control device (unless that absence resulted from bad faith, ulterior purposes or a patently unreasonable excess of discretion) but once it places a traffic control device it is liable for any failure to maintain it within a reasonable period of time after becoming aware of its defacement, removal or destruction" - See paragraphs 135 to 150.

Torts - Topic 61

Negligence - Causation - Causal connection - Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle - He suffered severe permanent physical injuries - Brenden settled - Southland proceeded to trial against the City of Calgary, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area - The Alberta Court of Queen's Bench held that the presence of Playground Zone signs would not have avoided the accident or mitigated its severity - However, if No Parking signs had been installed along the street, the accident would not have occurred - See paragraphs 151 to 161.

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - Seven year old Brenden started to cross the street from between two parked yellow Southland Transportation Ltd. school buses and was hit by a speeding vehicle - He suffered severe permanent physical injuries - Brenden sued - The parties agreed on damages of $4,625,000 - Southland and the drivers of two of the three parked buses jointly admitted partial responsibility, Southland admitting only vicarious liability for the conduct of its two drivers - One of the drivers was Brenden's mother - The City denied liability - Brenden settled his action - Southland proceeded to trial against the City, claiming contribution from it for failing to install Playground Zone signs and No Parking signs in the area - The Alberta Court of Queen's Bench found that the City was not negligent for the absence of Playground Zone signs but was negligent for the absence of No Parking signs - However, the City was exempt from liability for that absence by reason of s. 533 of the Municipal Government Act - In the event that a reviewing court disagreed with that conclusion, that the City was statutorily exempt from liability to Brenden, then based upon its relative blameworthiness the court would find the City responsible for 12.5% of the damages Brenden suffered - See paragraphs 163 to 184.

Cases Noticed:

Canadian Pacific Railway Co. v. Calgary (City) (1966), 59 D.L.R.(2d) 642 (Alta. C.A.), refd to. [para. 73].

Jetz v. Calgary Olympic Development Association (2002), 328 A.R. 265; 2002 ABQB 887, refd to. [para. 73].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 75].

Bantam Haulage v. Skurdelis, [1961] O.W.N. 17 (Ont. C.C.), refd to. [para. 86].

Nanji v. Mercs (1993), 135 A.R. 197; 33 W.A.C. 197 (C.A.), refd to. [para. 87].

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. 99].

Roncarelli v. Duplessi, [1959] S.C.R. 121, refd to. [para. 100].

Entreprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, refd to. [para. 105].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, consd. [para. 142].

Stetar v. Poirier and Parkland (County) No. 31, [1975] 2 S.C.R. 884; 3 N.R. 311, refd to. [para. 146].

Olson et al. v. Bieganek et al. (1997), 211 A.R. 313; 56 Alta. L.R.(3d) 322 (Q.B.), refd to. [para. 146].

Berezowski v. Edmonton (City) (1986), 70 A.R. 222 (C.A.), refd to. [para. 147].

Damiani et al. v. Anderson et al. (1980), 22 A.R. 199 (Q.B.), refd to. [para. 147].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 151].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 151].

Nattrass et al. v. Weber et al. (2010), 477 A.R. 292; 483 W.A.C. 292; 316 D.L.R.(4th) 666; 2010 ABCA 64, leave to appeal denied (2010), 410 N.R. 390; 510 A.R. 398; 527 W.A.C. 398 (S.C.C.), refd to. [para. 151].

Amoco Canada Petroleum Co. et al. v. Propak Systems Ltd. et al. (2001), 281 A.R. 185; 248 W.A.C. 185; 2001 ABCA 110, refd to. [para. 168].

376599 Alberta Inc. v. Tanshaw Products Inc. et al. (2005), 379 A.R. 1; 2005 ABQB 300, refd to. [para. 171].

Heller v. Martens et al. (2002), 303 A.R. 84; 273 W.A.C. 84; 2002 ABCA 122, refd to. [para. 175].

McEllistrum v. Etches, [1956] S.C.R. 787, refd to. [para. 175].

Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.), refd to. [para. 175].

Authors and Works Noticed:

Boghosian and Davison, The Law of Municipal Liability in Canada (1999), para. 3.52 [para. 91].

Jones and de Villars, Principles of Administrative Law (5th Ed. 2009), para. 23 [para. 105].

Transportation Association of Canada, Manual of Uniform Traffic Control Devices for Canada (1998), generally [para. 89].

Counsel:

David J. Wachowich, Q.C., and Kealy Lambert (Fraser Milner Casgrain LLP), for the plaintiffs and for Southland Transportation, L.R. Steele and Vic Sharma as Claimants for Contribution from the City;

Colleen N. Sinclair (City of Calgary), for the defendant, City of Calgary;

Raymond G. Baril, Q.C. (Chomicki Baril Mah LLP), for the defendant, Millennium Insurance Corporation;

James A. Butlin, Q.C. (Butlin Oke Roberts Nobles Braun), for the Motor Vehicle Administration Claims Act Administrator.

This case was heard between November 16 and December 18, 2009, by Jeffrey, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on May 11, 2010.