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Civil Litigation, Municipal

Twenty-minute assault of a man on city property a ‘perfect storm’

A recent ruling that found the city of Calgary liable for the injuries a man suffered during a brutal beating at a rapid transit walkway may not hold much sway over future cases involving duty of care, Toronto civil litigator Heather Paterson tells AdvocateDaily.com.

Paterson, a partner with Shibley Righton LLP who has an active municipal defence practice, says each case would have to be adjudicated based on its own unique facts.

She says the circumstances in the 2007 case, which involved a 20-minute beating of a man on an aerial walkway linking two Calgary public transit stations, amounted to a "perfect storm of everything that could go wrong."

"And it did, but it's hard to know how that will translate for cases that happen in 2018 because you're going to deal with very different circumstances. Each location will be different, as will the facts and particulars of the incident," Paterson says.

The case, which is being appealed, involves a young man who was attacked Jan. 1, 2007 as he walked through an aerial walkway linking two Light Rail Transit stations. The sustained assault caused significant injuries and was captured by video surveillance.

In a decision released 11 years later, the court held that the City of Calgary was liable to the the plaintiff "due to insufficient lighting, cameras, peace officers, surveillance video monitoring personnel, and the absence of a trespass ban or special events policy, the city failed to the meet the duty and standard of care owed, resulting in or contributing to the severity of the assault and injuries suffered," Justice Johnna Kubik said in her ruling.

She rejected the city's claim that it did not exert control over the walkway, as it was not considered to be an occupier as defined by the Occupiers' Liability Act.

"One of the significant things about this is how long ago the assault occurred," says Paterson, who comments generally and was not involved in the case. "You have to look at this in a time bubble as to the sorts of systems that were in place in 2007. Technologically, we live in a different world than we did then. Even cameras for monitoring have vastly improved over the last 11 years.

"What impact this case will have going forward, we'll have to see," she says. "It fell on a unique set of circumstances, one of which was old technology. There are a number of problems identified in this case that may not exist in today's world."

Part of the ruling dealt with the reduced number of security officials on duty — two patrolling officers compared to the usual 12 — on a day Calgary offered free access to its public transit, Paterson says.

"Manpower was one of the issues identified by the court as problematic. The most significant issue and the turning point in this case was how long the assault took place — about 20 minutes — and no one noticed it, nobody knew about it,” she says.

The case hinged on the Occupiers' Liability Act, which has a requirement that to the best of an organization's ability, patrons or invitees should be kept safe while on its premises, Paterson says.

"The city had a certain amount of control of the people who were coming onto its property, how the site operates, its condition at the time of the event as well as the activities that occur on the premises," she says. "And then one needs to meet a requisite standard of care at that point."

Kubik found the standard of care was not met, she says.

"She found a number of faults — one was the quality of the videos and the placement of the cameras, but also the number of staff on duty to monitor those cameras," Paterson says.

There were only two cameras in the vicinity of the assault, and two officers monitoring more than 40 video screens, "which is how this attack got missed," she says. "One camera was apparently of such poor quality you couldn't make out what was happening.

"The judge faulted the city for failing to notice the assault was happening and not dispatching officers to respond to it. She also found there was insufficient lighting as well as an inadequate number of police or transit officers available, but also that there were not enough officers on duty to act as a deterrent," Paterson says.

According to court documents, Kubik ruled that the city breached its duty on a number of points, including insufficient and poor-quality video surveillance and lighting, inadequate staffing at the Operations Control Room watching 42 monitors linked to 332 cameras throughout the rapid transit system, and not enough officers patrolling the system on a day where riders were offered free access.

In her ruling, the judge stated that the length of the attack showed the stations were not being properly monitored, and that having only two peace officers patrolling on a day where the city urged New Year’s revellers to use transit was a “departure from any reasonable standard of care.”

"There's always a general requirement that you do your best to keep people safe," Paterson says. "You have to have measures in place to protect people."

Had the attack involved a single punch or kick, "we would be looking at a very different case than one where a person is being beaten for 20 minutes. Much will depend on the facts and circumstances. You do what you can to keep people safe. You can't protect them from everything in the world."

Given that the city is appealing the ruling, Paterson says it’s difficult to determine what kind of impact this case might have in the future.

"If this case stood for a proposition in the level or standard of care expected for every small or large municipality, you would have a significant policy and budgetary impact on cities and towns,” she says. "Some may not have the budget for a significant level of security and service.”

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