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Appeal Court Upholds Ruling that City of Calgary Liable in CTrain Attack

Posted in: Blog, Serious Personal Injury, Updates, Verdicts/Settlements // Written on behalf of Cuming & Gillespie
August 22, 2019

In a recent decision by the Alberta Court of Appeal, the court ruled that the City of Calgary breached its “duty of care” by failing to provide a safe and secure transit environment and is liable for the injuries suffered by Kyle McAllister (“McAllister”).

WHAT HAPPENED?

Last year Cuming & Gillesplie Lawyers blogged about the lower court decision of the Court of Queen’s Bench which found that the City of Calgary is responsible for injuries suffered by McAllister following a brutal attack on a CTrain platform.

On New Year’s Day 2007, McAllister, 18 years old at the time, was attacked on the pedestrian overpass at the Canyon Meadows LRT station.  He was initially attacked by two youths, but others joined in with kicks and punches over a 20-minute period of time.

On the night of the attack on McAllister, two employees were viewing 42 video surveillance monitors.  Canyon Meadows station was being broadcast on 2 monitors from 25 cameras in the station that would cycle every three to four seconds.  The assault would have been on screen approximately five times each minute for three or four seconds.  Part of the attack was captured on camera, however, the images were blurry.

McAllister suffered a severe concussion, broken orbital bones, several facial fractures and damage to his teeth.  He required 40 stitches for these injuries. 

The trial judge found that the lighting, video surveillance and monitoring at the LRT station was deficient and prohibited a timely response to prevent the attack. 

The appeal court agreed that the City owed McAllister a duty of care to have systems in place to detect and respond to assaults and other such events.  The City was not, however, required to have a 24 hour security guard or continuous monitoring of every surveillance camera available.  However, the appeal court did find that the City was in breach of its duty to have a reasonable system in place for detecting and responding to an assault.

Unlike the lower court, the appeal court determined that the City’s breach of duty was in its failure to prevent the continuation of the assault.  The appeal court found the City liable for the “incremental damage caused by delayed detection and response”.  Therefore, the City was found to only be liable as one cause of the incremental damage to McAllister in the final 10 minutes of the 20 minute attack. 

PRIVACY CONCERNS

In response to this appeal decision, the Privacy and Access Council of Canada has declared concerns about the degree of surveillance required by the city.

Sharon Polsky, council president, is of the opinion that this judgment will apply to all city property, which will require installing more video surveillance in areas such as parks and bike paths.  The concern is that every citizen’s privacy will be compromised.  Polsky stated:

In essence, the court said there needs to be surveillance cameras to be able to meet the new duty to detect.  That applies therefore to all municipalities. 

So law abiding citizens, visitors to the city, everybody who just goes for a stroll and is minding their own business, not doing anything illegal, they will now be on surveillance cameras. It [the judgement] basically ordered a surveillance state.

McAllister’s lawyer, Trevor McDonald, on the other hand, does not believe that there should be any concern as a result of this decision. 

WHAT HAPPENS NEXT?

The City of Calgary is currently reviewing the appeal decision and has until the end of August to decide whether it will seek leave to appeal this decision to the Supreme Court of Canada.

In terms of compensation for McAllister’s injuries, another trial will be held, likely next year, to determine how much the city must pay to McAllister for his injuries and the delays to his career and education.  Based upon the appeal court decision, the city is only partly responsible for McAllister’s damages.  According to the ruling:

[o]n a balance of probabilities, the City should only be found liable for being one cause of the incremental damage to the respondent within the final 10 minutes of this 20-minute event.

Cuming & Gillespie Lawyers will continue to monitor this case and report any new developments in this blog when they become available.

In the meantime, if you or a loved one have suffered a serious personal injury you may be entitled to compensation for the damages you have suffered.  At Cuming & Gillespie Lawyers, we can help you identify the personal injury compensation types you are entitled to under the law.  Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or at 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve. 

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