Plaintiff loses right to sue after slip-and-fall on a sanded sidewalk Canadian Underwriter
A recent Supreme Court of Canada decision means a slip-and-fall lawsuit against an Alberta school board is dismissed.
Shortly before 9:00 a.m. on Jan. 17, 2013, Angelina Hannam slipped and fell on a sidewalk outside River Heights Elementary School in Medicine Hat. She was walking behind the custodian as he sanded the sidewalk.
Hannam, who broke her ankle, filed a lawsuit in 2015 against the Medicine Hat School District. In 2017, Master Andrew Robertson of the Alberta Court of Queen’s Bench granted an application by the school board dismissing the case. Master Robertson found that there was no evidence that justified sending the case to trial.
Initially, the plaintiff was successful on appeal. In Hannam v Medicine Hat School District No. 76, released in 2018, Justice Dallas Miller of the Alberta Court of Queen’s Bench overturned Master Robertson’s decision. Justice Miller found that there was conflicting evidence, and one purpose of a summary trial is to examine conflicting evidence.
But in a divided 2-1 ruling released in 2020, the Alberta Court of Appeal ruled in favour of the school board. That restored Master Robertson’s original decision dismissing the lawsuit.
Hannam applied for leave to appeal to the Supreme Court of Canada, which announced Mar. 18, 2021 that leave to appeal is denied.
Much of the Court of Appeal of Alberta’s 96-page ruling in 2020 discussed the criteria for summary judgement of a lawsuit and the impact of previous rulings. Among the cases cited were the Supreme Court of Canada’s 2014 ruling in Bruno Appliance and Furniture, Inc. v. Hryniak and the Court of Appeal of Alberta’s 2019 ruling in Weir-Jones Technical Services Inc. v. Purolator Courier Ltd.
The impact of Weir-Jones is that an Alberta court can grant summary judgement, without a full trial, even if the probable outcome of a trial is not obvious, the Alberta Court of Appeal wrote in Hannam.
Meanwhile, in Hryniak, the Supreme Court of Canada ruled in favour of the general concept of summary judgements in cases where there is “no genuine issue” requiring a trial. Because of the cost and delay, a full trial can actually prevent fair and just resolution of lawsuits, Justice Andromache Karakatsanis wrote in 2014 in Hryniak.
When Justice Miller of the Alberta Court of Queen’s Bench ordered a trial in Hannam’s lawsuit against the Medicine Hat school board, Justice Miller did not apply the Weir-Jones standard, the majority wrote in the Appeal Court ruling. In essence, Justice Miller asked if the outcome was obvious. Had Justice Miller applied Weir-Jones, he would have summarily dismissed the plaintiff’s lawsuit, the majority wrote.
“There was nothing more the Medicine Hat School District should have done to make its sidewalk safe for visitors,” Alberta Court of Appeal Justices Thomas Wakeling and Kevin Feehan wrote. “Alberta’s winters present conditions that present risks to its inhabitants. Albertans can mitigate those risks but never eliminate them. Every Albertan knows this. There was no evidence about the condition of the sidewalk that suggested the use of an ice chipper or ice melt would have improved the quality of the sidewalk surface for walkers.”
In dissent, Justice Brian O’Ferrall said courts ought to discourage defendants from appealing a refusal to grant a summary judgement, as the Medicine Hat school board did when it contested Justice Miller’s decision ordering a trial.
“Before a trial judge may summarily dismiss a claim, he or she must be satisfied, on a balance of probabilities, that there is no merit to the claim,” Justice O’Ferrall wrote. “It is the trial judge who must be persuaded. It is not for [the appeal court] to tell the trial judge he or she ought to have been persuaded, except in the clearest of cases. This court’s jurisdiction to summarily dismiss a claim which has not been litigated and adjudicated ought to be limited to cases of patently obvious error.”
Feature image via iStock.com/Sadeugra