On January 1, 2007, Kyle McAllister (“McAllister”) was assaulted on the Plus 15 connecting the Canyon Meadows C-Train Station parkade to the Canyon Meadows C-Train Station. McAllister sued the City of Calgary (“City”) for damages resulting from his injuries as a result of the assault. Justice Kubik found the City liable for McAllister’s injuries.
In the early morning hours of New Years Day 2007, McAllister was attacked by multiple assailants. The assault went unnoticed by surveillance monitoring personnel. McAllister suffered multiple injuries, including a severe concussion, broken orbital bones, and multiple fractures to his face. He required 40 stitches to his cheeks and lower left lip, his eye was badly bruised, and several teeth were damaged.
One of the assailants was later identified on surveillance footage and pleaded guilty as a youth to aggravated assault. He was given a one-year sentence in open custody. Another one of the assailants was identified and pleaded guilty to simple assault and received a forty-five day closed custody sentence and six months probation.
The trial in this matter was for liability only. McAllister bears the burden of proof on a balance of probabilities.
McAllister alleged that the City was the occupier of the premises and owed him a duty of care under the Occupiers’ Liability Act to ensure he was reasonably safe when using the premises.
McAllister further alleged the City failed to meet the duty and standard of care owed due to insufficient lighting, cameras, peace officers, surveillance video monitoring personnel, and the absence of a trespass ban or special events policy.
The City maintained that it was not an occupier of the Plus 15. Furthermore, it maintained that liability would not extend to a sudden, unprovoked and random attack of violence. Also, the City contended that McAllister failed to prove the standard of care with respect to issues of lighting, cameras, sufficiency of peace officers, and the reasonableness of a trespass ban or special events policy. Lastly, the City submitted that there is no causal connection between any breach and McAllister’s injuries.
JUSTICE KUBIK’S FINDINGS
Justice J.C. Kubik of the Court of Queen’s Bench of Alberta concluded that the City was in physical possession of the premises and was therefore responsible for and had control over the condition of the premises, the activities on the premises, and the persons allowed to enter the premises.
Based upon the evidence, Justice Kubik also concluded that McAllister was a “visitor” on the premises.
Therefore, the City owed McAllister a duty of care as set out in section 5 of the Occupiers’ Liability Act, as follows:
An occupier of a premises owes a duty to every visitor on an occupier’s premises to take such care as in all the circumstances of the case was reasonable to see that the visitor was reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.
Justice Kubik found that the City failed to meet the standard of care of a municipality to provide a safe and secure transit environment. Specifically, the City had deficient video surveillance and lighting resulting in the surveillance operators failing to take notice of the assault and subsequently failing to quickly dispatch transit officers or the police to the scene of the crime.
The Judge found that the City breached their duty and standard of care in the following ways:
- Deficient video surveillance and lighting: The combination of camera placement, low light, and poor quality video made it impossible to observe the assault as it occurred;
- Deficient video monitoring system and personnel: The City employed an insufficient number of personnel to observe 42 monitors from 332 camera at rapid intervals; and
- Understaffing of peace officers: The City employed an insufficient number of peace officers resulting in there being no deterrence present and increasing the risk of harm to visitors.
Justice Kubik was satisfied on a balance of probabilities that, but for the City’s breach of the duty of care, the attack on McAllister would have been observed quickly and appropriate personnel would have responded to the scene at an earlier stage and McAllister’s injuries would have been less severe.
If you or a loved one have been seriously injured, it is critical that you speak with a lawyer regarding your situation as soon as possible so as not to jeopardize any opportunity to seek compensation. Please contact the experienced and award winning lawyers at Cuming & Gillespie LLP online or at 403-571-0555. Contact our office for a free consultation to determine how we can help you recover compensation for your injuries.