Judges side with city in case of walker’s fall

A woman who fell on a wintery sidewalk nearly a decade ago has lost her right to appeal an earlier decision that favoured the city.

A woman who fell on a wintery sidewalk nearly a decade ago has lost her right to appeal an earlier decision that favoured the city.

It took three B.C./Yukon Court of Appeal judges little time Monday to hold up the September 2008 ruling of visiting Yukon Supreme Court Justice Allan Wachowich. He determined a finding of gross negligence would be necessary for Schan to succeed in her case.

Schan had alleged gross negligence by the city in her fall on an icy sidewalk on the west side of Second Avenue close to Main Street.

Extensively citing Wachowich’s written judgment, Court of Appeal justices Ian Donald, David Frankel and Daphne Smith noted their agreement with the ruling. They stated because the sidewalk is defined as a highway under the Municipal Act, a finding of
gross negligence would have to be proved.

Before the judges reached their decision, Schan’s lawyer, James Tucker, presented his arguments, stating it was largely an “academic appeal” on a point of law.

Throughout his arguments, he pointed out the current Municipal Act has no specific definition for a sidewalk; though the act prior to 1998 included sidewalks within the definition of a highway.

He also cited the territory’s Motor Vehicle Act and Highways Act in arguing that Schan fell on a sidewalk and, therefore, it’s a finding of negligence that must be proved.

The issue, he said, becomes one of whether she fell on a sidewalk or highway. While gross negligence would have to be proved for a highway fall, the standard for a sidewalk fall would be negligence.

The court has to look at the primary purpose of a crossing to determine if it’s a sidewalk or crossing, he said.

In this case, he noted, Schan fell on a section of sidewalk that goes over a laneway, but the primary purpose of the sidewalk is pedestrians, though it is slanted to allow vehicles through.

He pointed out the fall only became an issue because of where it happened on the sidewalk.

Because it occurred on a section that crosses a lane, there’s a question of whether it is then a crossing.

Had it happened on the raised section before or after the lane, Schan would then be required to prove only negligence rather than gross negligence, Tucker said.

The city’s lawyer, Justin Matthews, meanwhile, noted the Municipal Act clearly states that any place where a vehicle can pass is defined as a highway.

“This is not a sidewalk, as has been suggested by my friend,” he said.

Matthews also argued the way the Municipal Act is written extends the definition so that sidewalks are now included in the definition, requiring that gross negligence be proved in such cases.

Case law, he suggested, also shows sidewalks as being part of highways.

It was just 20 minutes after the arguments were made that the judges handed down their decision siding with the city.

The court of appeal is hearing cases in Whitehorse all week.