By Phoenix Howe, Student
In the recent Alberta Court of Queen’s Bench decision of Westerveld v Cineplex Entertainment Corp, 2022 CarswellAlta 920, Master Mattis considered whether adherence to the Alberta Building Code could be considered a defence against liability under the Occupiers’ Liability Act (OLA).
Master Mattis considered the 2009 Alberta Court of Queen’s Bench case of Condominium Corporation No. 9813678 v Statesman Corporation which states the purpose of building codes is to set the minimum acceptable construction standards to meet the public interest in health and safety for occupants of a building.
According to the 2011 Alberta Court of Queen’s Bench decision in McNulty v (Edmonton) City, compliance with building codes is not determinative of whether a premise is reasonably safe under section 5 of the OLA. A finding of negligence exists independently of any breach of the Alberta Building Code.
The finding in McNulty reaffirmed the 1985 Alberta Court of Appeal decision in Houle v City of Calgary where the City of Calgary was found liable for injuries to a child who had crawled inside a power transformer that had met regulatory guidelines.
Master Mattis said compliance with building codes is a relevant factor to be assessed in determining whether a premise is reasonably safe, but is not determinative of liability.
The takeaways from this case are:
- Compliance with building codes is not determinative of liability under the OLA.
- Compliance with building codes will be considered as one of several factors the court considers in assessing whether a premise is reasonably safe.
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