T-273-83
P. Lynn Suche (Plaintiff)
v.
The Queen, as represented herein by the Ministry
of Transport (Defendant)
INDEXED AS: SUCHE V. CANADA (MINISTRY OF TRANSPORT)
Trial Division, McNair J.—Calgary, December 9,
10 and 11, 1986; Ottawa, April 8, 1987.
Bill of Rights — Equality before the law — Action for
damages resulting from injuries sustained in fall on ice on
Crown property — Notice of claim not given within seven days
as required by Crown Liability Act, s. 4(4) — Such claims
absolutely barred by s. 4(4) and (5) unless notice requirement
strictly complied with — Where injuries not due to snow or
ice, court having discretion to dispense with notice if Crown
not prejudiced and if barring proceedings amounting to injus
tice — Distinction based on cause of injury arbitrary, capri
cious and so unfairly discriminatory as to violate s. 1(b) of
Canadian Bill of Rights — Crown Liability Act, R.S.C. 1970,
c. C-38, ss. 3(1)(b), 4(4),(5) — Canadian Bill of Rights, R.S.C.
1970, Appendix III, s. 1(b).
Crown — Torts — Plaintiff injured in fall on ice at airport
— Icy patch "unusual danger" within rule in Indermaur v.
Dames — Invitor's duty to take affirmative steps to ascertain
existence of, and eliminate, perils reasonable inspection dis
closing — Defendant not using reasonable care to prevent
damage to plaintiff from unusual danger of which should have
been aware — Icy patch forming over several hours — Weath
er conditions should have alerted defendant to risk of leaks in
canopy's drainage system — Defendant not establishing con
tributory negligence — Judgment for plaintiff — Alberta
Occupiers' Liability Act only binding on provincial Crown —
Occupiers' Liability Act, R.S.A. 1980, c. O-3.
This is an action for damages arising out of a knee injury
suffered by the plaintiff when she slipped and fell on a patch of
ice in the entranceway to the terminal building at the Calgary
International Airport. The accident was investigated by the
RCMP and the plaintiff was told that an occurrence report
would be filed. Subsection 4(4) of the Crown Liability Act
prohibits proceedings against the Crown unless notice in writ
ing of the claim and the injury complained of was given within
seven days after the claim arose. Subsection 4(5) dispenses with
the notice requirement if the judge is of opinion that the Crown
was not prejudiced by the want of notice, except where the
injury was caused by snow or ice. The plaintiff did not serve
such notice upon a responsible official of the Ministry of
Transport within seven days nor did she ever send a copy by
registered mail to the Deputy Attorney General of Canada. The
issue is whether the plaintiff's action is statute-barred. The
plaintiff argued, inter alia, that the statutory bar provisions
created by subsections 4(4) and (5) of the Crown Liability Act
where injuries are caused by snow or ice are contrary to the
right to equality before the law provision in paragraph 1(b) of
the Canadian Bill of Rights.
Held, judgment should be given for the plaintiff.
The purpose of the short notice provision is to give the Crown
an early opportunity to investigate the snow or ice conditions
and not be prejudiced by receiving insufficient notice.
In MacKay v. The Queen the Court held that the question to
be asked was whether such inequality as may be created by
legislation affecting a special class, is arbitrary, capricious or
unnecessary, or whether it is rationally based and acceptable as
a necessary variation from the general principle of universal
application of law to meet special conditions and to attain a
necessary and desirable social objective. However, in Beaure-
gard v. Canada, the Supreme Court of Canada held that once a
court determined that the impugned legislation was in pursuit
of a valid federal legislative objective, and that it was not
discriminatory of Parliament to draw some line between present
incumbents and future appointees, the case law under the
Canadian Bill of Rights did not permit courts to be overly
critical in reviewing the precise line drawn by Parliament. The
Beauregard case is distinguishable in that the valid federal
objective to be measured against the equality principle of the
Canadian Bill of Rights was the providing of remuneration to
judges with the result that a reasonable degree of latitude was
afforded for the attainment of that objective, despite the
appearance of some discrimination. The precise line of discrimi
nation in this case is directly traceable to the distinction created
by subsection 4(5) of the Crown Liability Act between claim
ants injured by snow or ice on premises occupied by the Crown
and all other claimants in occupiers' liability cases against the
Crown, whose injuries were not attributable to snow or ice.
Claimants in the latter category have the benefit of a judicial
discretion to dispense with the notice where it can be demon
strated that the Crown would not be prejudiced in its defence
and that to bar the proceedings would be an injustice. Claims
arising from injuries as a result of snow or ice are absolutely
barred unless there has been strict compliance with the seven-
day notice requirement of subsection 4(4) of the Crown Liabil
ity Act. The line of discrimination thus created is arbitrary and
capricious and so unfairly discriminatory as to violate para
graph 1(b) of the Canadian Bill of Rights. The right of access
of a litigant to the courts is a profoundly important interest.
The purpose of the notice of claim provisions can be achieved
without having to absolutely bar the proceedings in the case of
snow or ice injuries. The snow or ice exception is neither
rationally based nor justifiably acceptable for the attainment of
some necessary and desirable social objective. The exception is
inoperable in the face of the equality before the law principle of
paragraph 1(b) of the Canadian Bill of Rights. The plaintiffs
action is not automatically barred by the want of notice. The
Crown was not prejudiced because it had prompt notice. To bar
the proceedings would be an injustice.
CASES JUDICIALLY CONSIDERED
APPLIED:
Indermaur v. Dames (1866), 1 L.R.C.P. 274; MacKay v.
The Queen, [1980] 2 S.C.R. 370; Smith v. Provincial
Motors Ltd. (1962), 32 D.L.R. (2d) 405 (N.S.S.C.).
CONSIDERED:
Stuckless v. The Queen (1975), 63 D.L.R. (3d) 345
(F.C.T.D.); Streng v. Winchester (Twp.) (1986), 43
M.V.R. 1; 11 C.P.C. (2d) 183; 37 C.C.L.T. 296 (Ont.
H.C.).
DISTINGUISHED:
Beauregard v. Canada, [1986] 2 S.C.R. 56; (1987), 70
N.R. 1.
COUNSEL:
Harris N. Hanson for plaintiff.
Ian M. Donahoe for defendant.
SOLICITORS:
Harris N. Hanson, Calgary, for plaintiff.
Deputy Attorney General of Canada for
defendant.
EDITOR'S NOTE
The Executive Editor has determined that the
reasons for judgment herein should be reported
as abridged. This decision is important in holding
that the seven-day notice requirement in the
Crown Liability Act [R.S.C. 1970, c. C-38] with
respect to injuries caused by snow or ice is so
unfairly discriminatory as to violate paragraph
1(b) of the Canadian Bill of Rights (R.S.C. 1970,
Appendix Ill]. His Lordship held this provision
inoperable in view of the equality before the law
principle. The reasons for judgment on this aspect
of the case are set out in their entirety.
The following are the reasons for judgment
rendered in English by
McNAIR J.: The plaintiff's action is for dam
ages arising out of a severe knee injury sustained
by her when she slipped and fell heavily on a patch
of ice in the entranceway to the terminal building
of the Calgary International Airport on January
25, 1982. The only matter at issue is liability. The
quantum of damages has been agreed in the total
sum of $50,000, comprising $25,000 for special
damages, inclusive of subrogated hospital-
medicare and loss of earnings, and $25,000 for
general damages. The defendant pleads and relies
on the Occupiers' Liability Act, S.A. 1973, c. 79
(now R.S.A. 1980, c. O-3). The defendant denies
any negligence on its part and pleads contributory
negligence on the part of the plaintiff. The plain
tiff also pleads and relies on subsections 4(4) and
4(5) of the Crown Liability Act, R.S.C. 1970, c.
C-38.
In the evening of January 25, 1982 the plaintiff
was driven to the Calgary airport by her friend,
Susan Mann. The plaintiff was returning home to
Vancouver and had booked the Air Canada flight
departing from Calgary at 9:00 p.m. They arrived
at the airport at approximately 8:15 p.m. Mrs.
Mann stopped her car at the sidewalk curb just
beyond the first doorway entrance to the airport
departure level.
The entranceway is protected by a V-shaped
overhead canopy of glass, metal and concrete con
struction, which extends along the whole side of
the terminal building. The canopy has a heated,
built-in drainage system for melting accumulated
snow and ice. This consists of a metal, box-like
conduit running along the bottom of the canopy
for its entire length with hidden, vertical pipes at
spaced intervals for draining off the water.
The plaintiff got out of her friend's car, took her
suitcase from the back seat, and started for the
first, left hand door into the terminal building. As
she got closer, she noticed that this door was
marked "Out Only". The plaintiff turned partially
to head for the correct entrance door on her right,
whereupon she suddenly slipped on a patch of ice
and fell heavily to the sidewalk. The plaintiff's
right leg and knee were badly twisted in the fall
and she experienced a sharp, searing pain as the
medial ligament of her knee gave way. Mrs. Mann
came immediately to the plaintiff's assistance and,
before leaving her to report the accident, she
looked to the cause of the mishap and noticed
water dripping from the metal bottom of the over
head canopy onto the sidewalk. This had formed a
raised ridge and surrounding patch of ice on the
spot where the plaintiff fell. Mrs. Mann then went
and reported the accident to the nearest Air
Canada ticket agent and, with the aid of a wheel
chair provided by the agent, was able to get the
plaintiff inside the terminal building. By then, the
plaintiff's injury was giving her so much pain that
her flight booking was cancelled. An officer of
RCMP security staff, Constable Debra Harrison,
appeared on the scene to investigate the accident
at the request of the duty officer of Ministry of
Transport, whose office was upstairs in the termi
nal building. He had been alerted to the fact of the
accident by Air Canada. The investigating officer
obtained the facts from the plaintiff and Mrs.
Mann and advised them that she would be filing
an occurrence report of the accident. After the
plaintiff and Mrs. Mann left for the nearest hospi
tal in the Mann vehicle, Constable Harrison went
back again to check the icy spot in the entrance-
way. She saw the water dripping from the canopy
onto the sidewalk, which had frozen and formed
bumps of ice.
The plaintiff received emergency treatment at
the Foothills Hospital and X-rays were taken.
Corrective surgery was performed a few days later
in a Vancouver hospital. The plaintiff was con
fined for a time by her injury, underwent a lengthy
physiotherapy regime, had a second operation, was
fitted for a leg brace, which she still wears, and
suffered some residual disability.
The quantum of damages is not in issue and I
only briefly mention the victim's medical history
because of whatever bearing it may have on the
question of whether adequate notice was given to
the Ministry of Transport and the Deputy Attor
ney General of Canada. This point is very much in
issue.
The statutory provisions relevant to the matter
of occupiers' liability are paragraph 3(1)(b) and
subsections 4(4) and 4(5) of the federal Crown
Liability Act and not the Occupiers' Liability Act
of Alberta. In my opinion, it is only the provincial
Crown that is bound and made responsible as an
occupier of premises by the latter statute.
Paragraph 3(1)(b) of the Crown Liability Act
states:
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(b) in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property.
Subsections 4(4) and 4(5) of the Act provide:
4....
(4) No proceedings lie against the Crown by virtue of para
graph 3(1)(b) unless, within seven days after the claim arose,
notice in writing of the claim and of the injury complained of
(a) has been served upon a responsible official of the depart
ment or agency administering the property or the employee
of the department or agency in control or charge of the
property, and
(b) a copy of the notice has been sent by registered mail to
the Deputy Attorney General of Canada.
(5) In the case of the death of the person injured, failure to
give the notice required by subsection (4) is not a bar to the
proceedings, and, except where the injury was caused by snow
or ice, failure to give or insufficiency of the notice is not a bar
to the proceedings if the court or judge before whom the
proceedings are taken is of opinion that the Crown in its
defence was not prejudiced by the want or insufficiency of the
notice and that to bar the proceedings would be an injustice,
notwithstanding that reasonable excuse for the want or insuffi
ciency of the notice is not established.
There can be no question that the defendant is
the occupier of the premises of the Calgary Inter
national Airport and that the relationship between
the parties is that of invitor and invitee. The duty
owed by an occupier to an invitee was stated many
years ago by Willes J., in Indermaur v. Dames
(1866), 1 L.R.C.P. 274, at page 288 as follows:
... we consider it settled law, that he, using reasonable care on
his part for his own safety, is entitled to expect that the
occupier shall on his part use reasonable care to prevent
damage from unusual danger, which he knows or ought to
know;
The first question to be addressed is whether the
plaintiff's action is barred by the want or insuffi
ciency of the seven days' notice referred to in
subsections 4(4) and 4(5) of the Crown Liability
Act.
Counsel for the plaintiff frankly admitted that
his client did not serve such notice upon a respon
sible official of the Ministry of Transport nor send
a copy by registered mail to the Deputy Attorney
General of Canada within the prescribed period of
seven days after her claim arose on January 25,
1982. It is further conceded that no notice of claim
was ever sent by registered mail to the Deputy
Attorney General of Canada.
On March 1, 1982 the plaintiff wrote a regis
tered letter to Larry Legros, Airport General
Manager, Transport Canada, advising of her
intent to institute legal proceedings and outlining
the nature of her injuries. On March 31, 1982 her
former solicitor sent a letter by ordinary, prepaid
post to Transport Canada for the attention of the
said Manager. The letter reiterated his client's
claim and pointed out that the Department had
received a complete report from its staff and the
RCMP officer and that the Crown was not prejud
iced under the statutory provisions by the want or
insufficiency of notice, even though snow or ice
was involved in the circumstances.
Counsel for the defendant makes a strong sub
mission of no case by reason of the ordinary and
common sense meaning of the words of subsections
4(4) and 4(5) in reference to the want or insuffi
ciency of notice of the claim, where the injury was
caused by ice. The defence is raised and the plain
tiff must clear this difficult hurdle before the
"unusual danger" aspect of the case can be con
sidered, let alone resolved.
Counsel for the plaintiff counters by submitting,
firstly, that the plaintiffs injury was not caused by
ice but rather by a combination of water and ice.
Subparagraph (5)(iii) of the statement of claim, as
amended, speaks of "the build-up of ice from
water dripping on the sidewalk in question". The
evidence establishes that water was dripping at the
material time from a leak in the metal drainage
system of the overhead canopy, which had frozen
into a ridge and patch of ice on the spot where the
plaintiff fell. The ridge of ice was wet when the
RCMP officer ran her hand over it. Ice overlaid
with water is probably more of a hazard to the
unsuspecting than bare, dry ice. Nevertheless, it
seems to me that the icy patch was still ice, even
though caused by water dripping from overhead,
and that it would be nothing more than a play on
words to ascribe the cause of the accident to water
alone or a combination of water and ice. I find that
the injury complained of was caused by the icy
patch in the entranceway to the departure level of
the airport. In my view, the weight of evidence
supports this conclusion. The plaintiffs argument
on this point must necessarily fail.
Even if the injury was caused by ice, counsel for
the plaintiff contends that the failure to give the
seven days' notice in writing is not a bar to the
present proceeding. He argues that where statu
tory provisions are capable of two constructions,
one of which will conduce to an injustice and the
other of which will avoid that result then the court
is bound to adopt the construction which will avoid
the injustice. The reasonable, alternative construc
tion for which he contends is predicated on the
negative wording of subsection 4(5) in terms of its
prohibitory effect, coupled with the general words
"failure to give or insufficiency of the notice". The
result is that the general words must be construed
in their usual sense as not being limited ejusdem
generis to the notice specifically mentioned in
subsection 4(4). I have difficulty in understanding
this argument but, regardless of that, it is my
opinion that the ejusdem generis doctrine does not
apply in the circumstances. Consequently, I feel
compelled to reject the plaintiff's argument on this
point.
Finally, counsel for the plaintiff points to the
purpose of the two subsections as enunciated by
Mr. Justice Dubé in Stuckless v. The Queen
(1975), 63 D.L.R. (3d) 345 (F.C.T.D.). In my
view, the particular passage on which he relies
cannot be read in isolated context from that which
immediately precedes it.
In the Stuckless case, the plaintiff injured her
knee by slipping and falling on an icy ramp in
front of the airport terminal after leaving an air
craft. The icy patch was held to be an unusual
danger of which the defendant ought to have been
aware and for which it failed to take reasonable
care to prevent injury therefrom. Air Canada had
given a notice of claim to the Crown for any
damages for which it might be held liable as a
result of the occurrence within the time and in the
manner provided by subsection 4(4) of the Crown
Liability Act, and this was held to be a sufficient
notice on behalf of the plaintiff. Accordingly, the
snow or ice exception in subsection 4(5) was not
invoked.
Dubé J., made this comment, at pages 346-347:
The exception provided by s-s. (5) does not bring any relief
to the plaintiff, since she claims her injury was caused by ice,
an exception to the exception. From reading both subsections
together, I cannot but conclude that failure to give proper
notice within seven days is a bar to proceedings on a claim for
injuries caused by snow or ice. From these two subsections can
also be read the purpose of the short notice, that is to afford the
Crown an early opportunity to investigate the snow or ice
conditions and not be "prejudiced by the want or insufficiency
of the notice". [Emphasis added.]
Emphasizing the aspect of "early opportunity"
in the underlined words, counsel argues that the
purpose of the short notice limitation provision was
accommodated by the occurrence report of the
RCMP officer, which afforded the Crown an early
opportunity to investigate the icy condition that
was the causa causans of the injury. I am unable
to accept this argument. In my opinion, the precise
words of the two subsections, construed in their
ordinary and literal sense in the context of the
whole Act, are clear and unambiguous and lead
inevitably to the conclusion that failure to give
proper notice within seven days of the occurrence
is a bar to proceedings on a claim for injuries
caused by snow or ice. The occurrence report is
nothing more than notice of the accident and, in
my view, falls far short of the requisites of a notice
in writing of a claim against the Crown and of the
injury complained of, even on the broadest and
most remedial construction of the statutory
provisions.
If there were another construction that would
lead to a more reasonable result from the stand
point of the plaintiff and avoid the perpetration of
what is said to be a manifest injustice then I would
unhesitatingly choose to follow it. However, I see
no alternative avenue of construction that would
enable me to accomplish that end. In my opinion,
the snow or ice exception in subsection 4(5) of the
Crown Liability Act means that notice of claim for
injury attributable to those causes must be given
within the seven-day limitation period as a condi
tion precedent to bringing the action, unlike those
cases where the injury is attributable to other
causes and the notice requirement may be waived
under certain circumstances. Judges can only
strive to fairly interpret the plain words of a
statute, they cannot rewrite them to make them
conform to what they conceive to be just and
reasonable.
Driedger, Construction of Statutes, 2nd ed.,
sums it up this way, at page 30:
... the power of Parliament to pass even what might be
considered unjust legislation is unimpeachable provided the
language used is open to no other construction. Where the
language of a legislature admits of but one interpretation effect
must be given to it whatever its consequences.
I turn now to the plaintiff's final argument on
the issue of whether her action is irrevocably
barred by the failure to comply with the seven-day
notice requirement. The submission is that the
onerous limitation and statutory bar provisions
created by subsections 4(4) and 4(5) of the Crown
Liability Act with respect to claims for injuries
caused by snow or ice are contrary to paragraph
1(b) of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III] and are therefore inoperable. Coun
sel for the plaintiff cites the decisions in MacKay
v. The Queen, [1980] 2 S.C.R. 370 and Streng v.
Winchester (Twp.) [(1986), 43 M.V.R. 1; 11
C.P.C. (2d) 183; 37 C.C.L.T 296 (Ont. H.C.)] to
support his submission. He buttresses his argu
ment by utilizing subsection 3(1) of the Crown
Liability Act, which reads:
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(b) in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property.
Paragraph 1(b) of the Canadian Bill of Rights
provides as follows:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and
the protection of the law;
In MacKay v. The Queen, supra, the Supreme
Court of Canada held that the trial of a soldier
before a military tribunal on charges of possession
and trafficking in narcotics did not offend the
principle of equality before the law recognized by
paragraph 1(b) of the Canadian Bill of Rights.
The opinion of McIntyre J., with whom Dickson J.
[as he then was], concurred, is the one most often
referred to on the issue of whether legislation
enacted by Parliament in pursuance of a "valid
federal objective" offends the equality concept of
paragraph 1(b) of the Bill. The learned Judge
framed the issue this way, at page 406:
The question which must be resolved in each case is whether
such inequality as may be created by legislation affecting a
special class—here the military—is arbitrary, capricious or
unnecessary, or whether it is rationally based and acceptable as
a necessary variation from the general principle of universal
application of law to meet special conditions and to attain a
necessary and desirable social objective.
In Streng v. Winchester (Twp.) the court applied
the inequality test of MacKay to strike down a
three-month limitation period in the Municipal
Act [R.S.O. 1980, c. 302] as offending against
subsection 15(1) of the Charter [Canadian Chart
er of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)].
Counsel for the defendant contends that the
recent decision of the Supreme Court of Canada in
Beauregard v. Canada, [1986] 2 S.C.R. 56;
(1987), 70 N.R. 1 strikes a death blow to the
plaintiff's equality argument under paragraph 1(b)
of the Canadian Bill of Rights.
Beauregard v. Canada was the judge's case. The
respondent, a Quebec Superior Court judge
appointed on July 24, 1975, challenged the consti
tutional validity of section 29.1 of the Judges Act
[R.S.C. 1970, c. J-1, as amended]. This section
was introduced in Parliament on February 17,
1975 and was enacted December 20, 1975 [S.C.
1974-75-76, c. 81, s. 100]. Subsection 29.1(1)
provided that judges appointed before February
17, 1975 would contribute one and one-half per
cent of their salary toward the cost of pensions,
while subsection 29.1(2) provided that judges
appointed after February 16, 1975 would contrib
ute six and one-half per cent prior to January 1,
1977, and seven per cent thereafter. Prior to the
enactment of section 29.1, superior court judges
were not required to contribute to their pension
plan. The respondent's challenge was two-pronged.
Firstly, he alleged that section 29.1 violated sec
tion 100 of the Constitution Act, 1867 [30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II,
No. 5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1)]. Secondly, the respondent contended that
the words "before the 17th day of February, 1975"
in subsection 29.1(1) of the Judges Act and the
whole of subsection 29.1(2) were inoperative
because they violated his right to equality before
the law recognized by paragraph 1(b) of the
Canadian Bill of Rights. The Court concluded
that section 29.1 of the Judges Act did not violate
section 100 of the Constitution Act, 1867.
The respondent's subsidiary argument was that
section 29.1 of the Judges Act treated him more
harshly than other Superior Court judges and that
the "equality before the law" concept of paragraph
1(b) of the Canadian Bill of Rights protected him
from this discrimination by prohibiting the differ
ent statutory treatment of some judges vis-Ã -vis
other judges with respect to their pensions. Essen
tially, what the respondent was objecting to here
was the retroactive cut-off date of February 17,
1975 chosen by Parliament and reflected in section
29.1 of the Judges Act in so far as it pertained to
the relatively small group of judges, of whom he
was one, appointed after such cut-off date but
before the Bill became law on December 20, 1975.
The Court held that section 29.1 of the Judges
Act did not violate paragraph 1(b) of the Canadi-
an Bill of Rights on the ground that once it was
accepted that the general substance of the law was
consistent with the valid federal objective of pro
viding for remuneration of section 96 judges and
that it was not discriminatory of Parliament to
draw some line between present incumbents and
future appointees, the jurisprudence under the
Canadian Bill of Rights did not permit courts to
be overly critical in reviewing the precise line
drawn by Parliament. Some line was fair and not
discriminatory. Chief Justice Dickson, writing for
the majority, makes the following statement, at
page 90:
This short history of "equality before the law" under s. 1(b)
of the Canadian Bill of Rights demonstrates that a majority of
the Court was never prepared to review impugned legislation
according to an exacting standard which would demand of
Parliament the most carefully tailored, finely crafted legisla
tion. On the contrary, a majority of the Court was consistently
prepared to look in a general way to whether the legislation was
in pursuit of a valid federal legislative objective. This approach
was followed in cases involving legislative distinctions on the
basis of race, sex and age, and in cases involving profoundly
important interests of the person asserting the equality right.
The passages which I have quoted from these cases indicate
that the Court was concerned with the merely statutory status
of the Canadian Bill of Rights and the declaratory nature of
the rights it conferred. I believe the day has passed when it
might have been appropriate to re-evaluate those concerns and
to reassess the direction this Court has taken in interpreting
that document.
This is the statement on which counsel for the
defendant stakes his countervailing argument.
I consider that the Beauregard case is readily
distinguishable from the fact that the valid federal
objective to be measured against the equality prin
ciple of the Canadian Bill of Rights was the
providing of remuneration for judges with the
result that a reasonable degree of latitude was
afforded for the attainment of that objective,
despite the appearance of some discrimination.
The precise line of discrimination in the case at
bar is directly traceable to the distinction created
by subsection 4(5) of the Crown Liability Act
between claimants injured by snow or ice on prem
ises occupied by the Crown and all other claimants
in occupiers' liability cases against the Crown,
whose injuries were not attributable to snow or ice.
Claimants falling within the latter category have
the benefit of a judicial discretion to dispense with
the want or insufficiency of notice where it can be
demonstrated that the Crown would not be prejud
iced in its defence and that to bar the proceedings
would be an injustice. This benefit is denied to
claimants injured as a result of snow or ice. In
final analysis, proceedings against the Crown by
those claimants are absolutely barred unless they
strictly comply with the seven-day notice require
ment of subsection 4(4) of the Crown Liability
Act.
In my opinion, the line of discrimination thus
created is arbitrary and capricious and so unfairly
discriminatory as to violate paragraph 1(b) of the
Canadian Bill of Rights. No one would deny that
the right of access of a litigant to the courts is a
"profoundly important interest" so far as that
person is concerned. It has been said time and
again that the purpose of the notice of claim
provisions of the Act is to give the Crown an early
opportunity of investigating the circumstances
under which an injury occurred and for which a
claim will likely be made. That purpose can still be
achieved without having to absolutely bar the pro
ceedings in the case of snow or ice injuries. It
follows, in my view, that the snow or ice exception
is neither rationally based nor justifiably accept
able for the attainment of some necessary and
desirable social objective. I am therefore of the
opinion that the exception is inoperable in the face
of the equality before the law principle of para
graph 1(b) of the Canadian Bill of Rights. In the
result, the plaintiff's action is not automatically
foreclosed by the want or insufficiency of notice.
Counsel for the defendant fairly conceded that
the principle of prejudice to the Crown was not
relevant to the case, presumably because the
defendant had prompt notice of the accident giving
rise to the claim. I have no difficulty in circum
venting the other condition of subsection 4(5) of
the Crown Liability Act by concluding that to bar
the proceedings in the present case would be an
injustice.
EDITOR'S NOTE
His Lordship reviewed the evidence on the
merits of the case. The first question was as to
whether the icy patch was an "unusual danger"
within the rule in Indermaur v. Dames. A danger
was unusual if not usually found in carrying out
the task or fulfilling the function which the invitee
had in hand. Reference was made to Fleming,
The Law of Torts (6th ed.) in which it is stated
that an invitor's duty is to "take affirmative steps
to ascertain the existence of, and eliminate, perils
that a reasonable inspection would disclose." His
Lordship, applying the reasoning of Ilsley C.J. in
Smith v. Provincial Motors Ltd. (1962), 32 D.L.R.
(2d) 405 (N.S.S.C.) to the facts of this case, found
the icy patch to have been an unusual danger.
As to whether the defendant had used reason
able care to prevent damage to the plaintiff from
an unusual danger of which it should have been
aware, McNair J. found as a fact that the icy
patch had formed over a period of several hours
but had not been detected by the defendant's
servants. The weather conditions had been such
as to alert the defendant to the risk of leaks in the
canopy's drainage system. The cleaners should
have been told to watch for leaks. The scrutiny
was inadequate to the risk. Accordingly, reason
able care had not been exercised.
The defendant had failed to discharge the
burden of establishing contributory negligence.
In the result, judgment was given for the plaintiff
for the agreed amount together with pre judgment
interest and party and party costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.