Bensler J

6.14: Appeal from master’s judgment or order

Case Summary

In 2006, the Respondent (“Ms. Stirling”) slipped and fell on ice and snow accumulated on the sidewalk outside of the Appellants’ premises (the “Incident”). At that time, the City of Calgary owned the sidewalk and Encana Corporation was the owner the building adjacent to the sidewalk (the "Premises") which was being leased by Calhome Properties Ltd, (collectively, the “Appellants”). The Premises were demolished shortly after the Incident. The original Statement of Claim referred to the sidewalk but did not mention an awning that extended over the sidewalk. The Amended Statement of Claim included an allegation that the Appellants failed to inspect and maintain the awning and that snow and ice was allowed to form on the sidewalk from water flowing from the awning to the sidewalk (collectively, the “Amendments”).

After reviewing the Limitations Act, RSA 2000, c L-12, Master Farrington found that the facts remained generally the same as in the original claim and that the question of where the water originated from was always going to be an issue. As such, Master Farrington allowed the Amendments. On Appeal, Justice Bensler noted that the standard of review for an Appeal from a Master is correctness, and no deference is owed to the Master's Decision. Bensler J. also addressed the preliminary issue as to whether the new evidence adduced by the parties should be admitted. The Appellants opposed the new evidence submitted by Ms. Stirling which consisted of, amongst other things, video footage and photographs taken by Ms. Stirling.

Justice Bensler considered Rule 6.14(3) which grants the Court authority to admit new evidence if it is deemed relevant and material. Her Ladyship found that the new evidence related to the location where Ms. Stirling fell and the potential issues of water drainage. It also showed the sidewalk area where the awning structure would have been located and the fact that there may have been a downspout. While this did not mean that the situation was exactly the same as it was at the time of the Incident, it was still relevant and material and accordingly admissible.

Turning to the issue of the Amendments, the Appellants argued that the Master erred by failing to consider the principles enumerated in jurisprudence which provides for four exceptions to allowing Amendments, including whether there is prejudice not compensable in Costs. The Appellants argued that they were prejudiced by the late Amendments due to the passage of time.

Bensler J. found that that the origin of the ice was always going to be an issue in the Action. The fact that it was not investigated on an earlier occasion by the Appellants could not mean that the Appellants should be immune from liability. While there was no question that the burden remained on Ms. Stirling to prove her case at Trial, this was not a case where the Appellants could not defend their case, especially considering the photographs and video evidence. Accordingly, the Appeal was dismissed.

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