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.”

When public and corporate interests collide, the former will often override the latter —particularly when an element of safety is involved, Toronto civil litigator Heather Paterson tells AdvocateDaily.com.

“Municipalities’ decisions aren’t immune to challenge, but the bylaw must have a proper purpose and its subject matter has to be a municipal issue,” Paterson, a partner with Shibley Righton LLP, who has an active municipal defence practice. “It has to be something that’s in the public interest and in response to citizen’s needs.”

She points to a recent situation in a small Quebec municipality where a company had a permit to do some oil and gas exploration, but the village feared the drilling would negatively impact its drinking water.

Ristigouche Sud-Est, just north of the New Brunswick border, passed a bylaw creating a two-kilometre no-drill zone around potable water sources in the community. The company challenged the municipality’s authority to pass it and launched a $1-million lawsuit, arguing the village hastily adopted the new law, illegally targeting it and making it impossible for it to drill, Paterson says.

“Municipalities have very broad discretion to enact new laws, provided they’re considered to be within their purview of authority and the decision impacting the bylaw is reasonable,” she says. “In this case, the municipality had an obligation to its citizens to provide safe drinking water.”

Drilling near drinkable water sources raises issues of contamination and concerns over chemicals leaking into the soil, Paterson says.

Armed with scientific studies and strong support, the village was able to successfully defend its bylaw, she says.

“The court found the right to ensure safe drinking water was clearly within the municipality’s scope. Judges generally give a great deal of deference to municipalities provided it’s within their jurisdiction and with the proper purpose,” Paterson says.

“The strange thing about this case is there wasn’t a provincial act at the time that dealt with protected areas around potable water sources” such as the more than decade-old Ontario Safe Drinking Water Act, she says.

But Paterson points out that quickly changed after this decision.

Within months of Ristigouche Sud-Est adopting the bylaw, the Quebec government instituted a regulation creating a 500-metre protected perimeter around water sources, particularly around the oil and gas drilling context, she says.

“Had that been in place months earlier, the legal challenge likely wouldn’t have come up,” Paterson says.

Key to challenging a municipal bylaw is “proving the municipality acted in bad faith” and outside of its scope or jurisdiction, and that’s something the drilling company was unable to demonstrate, she says.

In the Quebec situation, the municipality had more than 50 per cent of the community expressing concerns, and it consulted with experts and produced scientific studies to support its position, Paterson adds.

“So it wasn’t something that was done on a whim, it was a well-thought out decision in how to protect its residents,” she says.

Public consultation might have helped to diffuse a conflict between the City of Markham and an area resident who hoped to donate the sculpture of a cow on stilts, Toronto civil litigator Heather Paterson tells AdvocateDaily.com.

But residents’ consternation over Charity, the stainless-steel cow sculpture which stands 7.6-metres high, prompted the removal of the statue. As a result, the would-be donor sued the municipality for $4 million and sought an injunction to prevent the municipality from moving it, says Paterson who was not involved in the case, and comments generally.

The Ontario Superior Court of Justice denied the injunction and the sculpture was ultimately moved.

“I think in the end the judge’s reasoning was, you can’t force people to take a gift,” says Paterson, a partner with Shibley Righton LLP, who has an active municipal defence practice.

In his decision, Justice P. Andras Schreck of the Ontario Superior Court wrote that the donor did not meet the well-established tests that the question be serious and that the party seeking the injunction will suffer irreparable harm if it is not granted.

“The residents of Markham do not want the gift that the plaintiff wishes to give them. I am not satisfied that forcing them to accept the unwanted gift by granting an injunction is required to preserve the plaintiff’s rights or to prevent irreparable harm,” Schreck wrote.

Residents complained when the steel cow was installed, arguing that it negatively impacted property values, posed a potential hazard and that they weren’t consulted. City council reacted to the complaints and announced their decision to have it moved.

Typically, a municipality will enter into an artwork donation agreement when a gift of this nature is offered, says Paterson.

“That’s something that’s negotiated between the parties and, in this case, there was a provision in the agreement that the city could move it once they took full ownership,” she says, adding that reasons could include public safety concerns or bylaw compliance. “In any event, the city had sole discretion to move the statue if it wanted.”

The city also had an obligation to inform the donor of its decision to relocate the sculpture, and the donor then had the first right of refusal to retain its possession, Paterson says.

But the owner argued that moving Charity repudiated the agreement and that the sculpture would sustain damage and be irreparably harmed, according to court transcripts.

“While that wasn’t the deciding factor for the court, it certainly is a consideration for the municipality,” she says.

Paterson says the City of Toronto and other municipalities have guidelines for public art and monument donations, which typically include a provision for public consultations. It offers the community an opportunity to have a voice and for council to hear, beforehand, any potential concerns, she says.

“While it is not clear that there were public consultations in this case, if there had been, that might have gone a long way toward avoiding the heartache everybody experienced,” Paterson says.

Law is all about people for Toronto civil litigator Heather Paterson.

While disputes in court can sometimes get ugly, Paterson, a partner with Shibley Righton LLP, tells AdvocateDaily.com that maintaining good relationships with colleagues and clients is one of her top priorities.

“In practice, you have to develop good and friendly working relationships with people, and hopefully you’ll work with them for a while,” she says. “That’s important for your own clients because they have to feel comfortable taking advice and giving instructions.”

Paterson also adopts a similar approach to her opponents in the courtroom.

“There are times when you have to be forceful, but it’s usually a friendly, collegial relationship between counsel,” she says. “Law is not a very big profession, even if it might feel that way sometimes. You come across the same people over and over again, so it’s really easy to trash a relationship if you’re not careful. A few missteps and your reputation can come tumbling down.”

A large proportion of Paterson’s files involve insurance work on behalf of municipalities, defending mostly personal injury cases. In addition, she has developed a niche in professional liability defence work on behalf of architects accused of wrongdoing following building structure or design failures.

“It’s a fascinating area, and extremely varied,” Paterson says. “I’ve learned a great deal about things I knew nothing about, such as roofing trusses, glass balconies and the importance of the right shading co-efficient of window glass.

“But it’s nice to still be learning at this stage, and they’re great people to work with,” she adds.

Paterson says she always harboured hopes of a legal career in her youth but took a slightly circuitous route to the profession.

After graduating from Western University with a BA in political science and sociology, she qualified as a paralegal and worked as a real estate clerk at a Toronto law firm.

“It was a way of making sure it was something I really wanted,” Paterson says. “And it also helped me figure out which areas of law I didn’t want to practise.”

At the Queen’s University law school, Paterson got involved with its legal aid clinic and was part of the school’s team at the American Bar Association Client Counselling Competition. When she graduated in 2004, she won the Denis Marshall Award, which is awarded to a few Queen’s law students in each graduating class who are voted by their peers as individuals who have made a lasting impression on the law school community during their time there.

Paterson also holds post-graduate certificates in criminology and alternative dispute resolution but discovered civil litigation during her articling term at Shibley Righton.

“It’s certainly much better hours and less stressful than dealing with bail courts and disturbing crimes,” jokes Paterson, who is also a member of the Canadian Bar Association, the Advocates’ Society, Canadian Defence Lawyers and The Lawyers' Club.