DUMKEE v WETASKIWIN (CITY)

The Plaintiff commenced an Action against the Defendant municipality arising from a slip and fall at a public pool. The Defendant applied for Summary Judgment, and the Applications Judge dismissed the Action on the basis that the claim was barred by Section 530 of the Municipal Government Act, RSA 2000, c M-26 (the “MGA”). The Plaintiffs appealed the dismissal pursuant to Rule 6.14.

Justice McLeod held that Appeals from Applications Judge decisions are heard de novo and are subject to a correctness standard where no fresh evidence is filed. The Court noted that Rule 6.14 has been described as a “dispiritingly dysfunctional rule” because it permits parties to advance more robust arguments on appeal rather than requiring them to present their full case initially. Notwithstanding that concern, McLeod J. confirmed that the Court must rehear the Application as if it were being argued for the first time and without deference to the Applications Judge.

In considering the Application pursuant to Rule 7.3, the Court assessed whether it could make the necessary findings of fact and apply the law to reach a fair and just determination on the merits. The Court considered two distinct theories advanced by the Plaintiffs.

First, the Plaintiffs alleged that the pool floor was inherently defective because it was too slippery. Justice McLeod found that there was no evidence that the floor was unfit for its intended purpose. As a result, Justice McLeod concluded that this aspect of the claim had no merit and summarily dismissed it pursuant to Rule 7.3.

Second, the Plaintiffs alleged that the Defendant failed to take reasonable steps to maintain the pool floor in a safe condition, including failing to re-apply anti-slip spray in accordance with the manufacturer’s recommendations. McLeod J. held that this aspect of the claim engaged the municipality’s obligations under Section 532 of the MGA rather than the immunity in Section 530. The Court found that there was insufficient evidence to determine whether the failure to reapply the spray for nearly a year beyond the recommended interval was reasonable. 

Because the Court could not make the necessary findings of fact on that issue, Justice McLeod held that there was a genuine issue requiring Trial. Accordingly, that portion of the claim was not suitable for Summary Judgment under Rule 7.3.

The Court allowed the Appeal in part pursuant to Rule 7.3(1)(a) and set aside the Summary Dismissal except with respect to the defective floor claim, which was dismissed.