Case: Revelstoke (City) v. Gelowitz, 2023 BCCA 139 (CanLII)

Keywords: negligence; municipal property; Anns/Cooper framework

Synopsis:

The Respondent, his spouse, and three children are camping at Williamson Lake Park and Campground (in B.C.) with friends. The Respondent is seriously injured after making a shallow dive into the lake and striking his head on an obstacle (“likely…a tree stump”) in the water. He suffers catastrophic injuries, including quadriplegia. (See paras. 1, 8, and 11).

Williamson Lake Park is located on land owned by the Appellant, City of Revelstoke. However, the land from which the Respondent dove is on owned by a third party, Revelstoke Alpine Village Inc. The Trial Judge (Horsman, J.) finds the City liable in negligence and the Respondent contributorily negligent, apportioned 65%/35%, respectively. (See para. 2).

On appeal, the City says the Trial Judge erred by finding it owed a duty of care to the Respondent on land it neither owned, nor controlled. (See para. 3). The Court of Appeal (Fenlon, Fitch, and Fisher, JJ.A.), dismisses the appeal and affirms that the City owed the Respondent a duty of care. (See para. 4).

Importance:

The decisions below raise significant legal questions, including:

    • Should the fact that the Respondent dived from land owned by a third party be relevant to the existence a duty of care owed by the City?
    • Does imposing a duty in these circumstances introduce indeterminate liability and unduly broaden the scope of liability for land owners?

For the Trial Judge, the answer to these questions is “no”. The Court of Appeal says “yes”, the location of the dive matters, but ultimately rejects the policy concerns raised by the Appellant, agreeing that a duty of care is owed on the Anns/Cooper analysis. (See para. 37).

For the purpose of this summary, we have focused on the duty of care analysis. However, a detailed discussion with respect to factual and legal causation can be found at paras. 62-74 and 75-85 of the Court of Appeal decision. For example, at para. 62, the Court summarized the law of factual causation as follows:

Factual causation requires a plaintiff to show on a balance of probabilities that the harm would not have occurred but for the defendant’s negligent act…The trial judge’s finding on factual causation is clearly subject to a standard of palpable and overriding error. [Citations removed].

And the Court of Appeal outlined the requirements of legal causation at para. 75:

For a breach of duty to be the legal cause of a loss, the harm must not be too remote. The actual injury must be a reasonably foreseeable result of a defendant’s negligent conduct. The remoteness inquiry, which focusses on the actual injury, is distinct from the reasonable foreseeability analysis within the duty of care, which focusses on the type of injury…The remoteness inquiry requires an objective analysis, the principle being that it is the foresight of the reasonable person in the position of the defendant which determines responsibility. [Citations removed].

With respect to the duty of care, the Trial Judge determined the City owed a prima facie duty of care “as an invitee to facilities owned and controlled by it, to warn him of known risks of diving associated with the use of the Park facility”. (See para. 12). In other words, the Trial Judge sourced the duty of care as falling within an “analogous category of cases”, including Gerak v. British Columbia (1984), 1984 CanLII 392 (BC CA), Woods v. Ontario (Minister of Natural Resources), [2003] O.J. No. 1165 (C.A.), and Keenan v. Brown, 2009 NBCA 81 at paras. 143, 150.

The Court of Appeal disagreed with the Trial Judge on this point, concluding that the location of the dive being on land owned by a third party was a significant factual difference:

In my opinion, the trial judge erred in relying on [the Respondent’s] characterization of the relationship as simply between the City, as the owner of a waterfront facility, and Park users who take up the invitation to use the facilities. This resulted in the judge identifying the established category very broadly as a duty of care on owners of waterfront facilities “to warn invitees of dangers associated with the use of their facilities, including the risks associated with diving into the water”. (See para. 31).

“In the event she was wrong” – as, indeed, the Court of Appeal determined – that this matter fell within an analogous category of decisions, the Trial Judge also conducted an analysis as to the requirements of foreseeability and proximity under the two-part Anns/Cooper test. (See para. 14; Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Cooper v. Hobart, 2001 SCC 79).

In the first part of the analysis (i.e. whether the harm suffered by the Respondent herein was a foreseeable consequence of the Appellant’s acts or omissions, and whether there is a sufficient relationship of proximity between the parties to impose a duty of care), the Trial Judge determined the risk of injury to Park users from diving into the Lake was “reasonably foreseeable” to the City. (See para. 15). With respect to proximity, the Trial Judge commented that “[t]he City invited members of the public, including the plaintiff, to visit and camp at the Lake, and to use the Lake for water activities”. (However, we note the passage cited by the Court of Appeal as support for this finding does not actually contain the word “proximity”. (See para. 16)).

With respect to the second part of Anns/Cooper (i.e. whether there are residual policy considerations that may negate the imposition of a duty of care), the Trial Judge rejected the City’s argument that imposing a duty in this case would create indeterminate liability and expand the scope of liability faced by property owners. (See paras. 17-18).

Reviewing the Trial Judge’s Anns/Cooper analysis, the Court of Appeal agreed the City was aware of the risks associated with diving into the lake – that this finding was “one that…was open to her on the evidence”. (See para. 45). Although the Court of Appeal found an invitation by the City itself would not be sufficient to establish “creation and control of a risk” and that “there may undoubtedly be other circumstances in which a relationship of proximity will be severed where an individual suffers an injury from a place that is not owned or controlled by the owner of a waterfront facility, not routinely accessed from the facility, or is simply too far away from the facility”, the Court emphasized that this question is highly contextual and fact-dependent. For the Court, the key question is whether, as per Nelson (City) v. Marchi, 2021 SCC 41 at para. 17, the parties are “in such a ‘close and direct’ relationship that it would be ‘just and fair having regard to that relationship to impose a duty of care in law upon the defendant’”. (See para. 53).

In the “unique and particular circumstances of this case” the Court of Appeal agreed the Anns/Cooper test was met. (See para. 51).

The Court of Appeal rejected the residual policy arguments of the City and Attorney General, as intervenor, that the duty of care established herein would impose a risk of indeterminate liability and is too broad to be sustainable. For the Court of Appeal, “[t]his case does not establish a precedent that would ground liability on owners of waterfront properties for injuries suffered by invitees at locations that are remote from the location of known risks associated with the use of the waterfront on the owner’s own property.” (See para. 59).

Ultimately, the Court of Appeal affirmed the Trial Judge’s decision (though differing “in some respects” (see at para. 4)) and noted the following duty of care has been established:

it is a duty to warn [the Respondent] as a Park user of the known risks associated with the use of the Park facility, which includes a duty to warn of the risks of diving in the area extending from the Park foreshore to the eastern shore at Big Rock and Little Rock, locations in close proximity to the City’s Raft, which were known by the City to be accessed by Park users. (See para. 87).

Might this duty of care be subject to further consideration at the Supreme Court of Canada? Qui vivra verra.

Counsel for the Appellant: Greg Allen, Thea Hoogstraten, and Tanner Gervin (Allen/McMillan, Vancouver)

Counsel for the Respondent: Gib van Ert and Natalie Chan (Olthuis/Van Ert, Vancouver)

Counsel for the Intervener: Peter Ameerali and Meghan Butler (Min. of Attorney General (BC), Victoria)

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