Ryan v. Victoria (City)

Ryan v. Victoria (City)
Collection
Supreme Court Judgments
Date
1999-01-28
Report
[1999] 1 SCR 201
Case number
25704
Judges
Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Courts
Torts
Notes
SCC Case Information: 25704
Decision Content
Ryan v. Victoria (City), [1999] 1 S.C.R. 201
Murray Ryan Appellant
v.
The Corporation of the City of Victoria,
The Esquimalt and Nanaimo Railway Company and
Canadian Pacific Limited/Canadien Pacifique Limitée Respondents
Indexed as: Ryan v. Victoria (City)
File No.: 25704.
1998: June 17; 1999: January 28.
Present: Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Torts ‑‑ Negligence ‑‑ Nuisance -- Railways ‑‑ Defence of statutory authority ‑‑ Railway built embedded in and running down an urban street and all applicable statutes and regulations complied with ‑‑ Motorcyclist thrown and injured when front tire lodged in gap beside rail ‑‑ Whether Railways liable in negligence ‑‑ Whether railways liable in public nuisance.
Courts ‑‑ Appeal ‑‑ Trial judge finding no contributory negligence ‑‑ No palpable and over‑riding error ‑‑ Whether the Court of Appeal erred by reversing trial judge’s findings.
The appellant was injured when he was thrown from his motorcycle while attempting to cross railway tracks running down the centre of a street in downtown Victoria. The front tire of his motorcycle became trapped in a “flangeway” gap running alongside the inner edge of the street‑grade tracks. The motorcyclist sued the City and the railway companies which owned and operated the tracks. The Railways denied liability on the ground that the tracks were authorized by, and complied with, all applicable statutes, regulations and administrative orders.
The trial judge held the Railways and the City jointly and severally liable in negligence, the former for maintaining dangerously wide flangeways and the latter for failing to warn of the hazard. In addition, he held the Railways liable in nuisance. The British Columbia Court of Appeal set aside the nuisance finding and held all of the respondents liable only for failure to warn. The Court of Appeal also found the appellant to be contributorily negligent and liable for 50% of his damages.
At issue here was, first, whether the Railways were liable in negligence. Under a long‑standing common law rule, the standard of care owed by railways to the public was normally limited to the discharge of statutory obligations. The question is whether that rule should now be discarded, and if so, how statutory compliance should affect the assessment of liability under ordinary negligence principles. The second issue was whether the Railways were liable in public nuisance. Again, the Railways disclaim liability on the ground that the tracks involved were authorized by statute and regulations. The question arose as to whether that defence was unavailable because the hazard posed by the tracks was not an “inevitable consequence” of exercising statutory authority. The final issue was whether the Court of Appeal erred by reversing the findings of the trial judge with respect to contributory negligence. The finding of liability for failing to warn the appellant of the hazard created by the flangeways was not challenged.
Held: The appeal should be allowed.
A duty of care existed here. Duty of care is determined under the two‑step Anns/Kamloops test (Anns v. Merton London Borough Council, adopted in Kamloops (City of) v. Nielsen). Under the first step, the establishment of a prima facie duty of care, a relationship of “proximity” must be shown to have existed between the parties such that it was reasonably foreseeable that a careless act by the Railways could result in injury to the appellant. The threshold is a relatively low threshold. Liability does not necessarily follow the establishment of proximity.
Under the second step, it must be determined whether any factors exist which should eliminate or limit the duty found under the first branch of the test. Policy considerations may serve to negate a duty of care entirely or to “limit” the “scope” of an existing duty but they do not give rise to “greater” or “lesser” duties in different cases. A duty of care either exists or it does not. The “scope” of a duty of care can be “limited” under the Anns/Kamloops test only in the sense that the duty will arise in certain situations and not in others. The Anns/Kamloops test is not concerned with legislative or judicial policies which, as in this case, define the conduct required to meet an existing duty. Such policies relate to the standard of care.
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. Legislative standards are relevant to the common law standard of care, but the two are not necessarily co‑extensive. The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness. By the same token, mere compliance with a statute does not, in and of itself, preclude a finding of civil liability. Statutory standards can, however, be highly relevant to the assessment of reasonable conduct in a particular case, and in fact may render reasonable an act or omission which would otherwise appear to be negligent.
The “special rule” which existed at common law with respect to railways can no longer be justified in principle and should be set aside. Under this rule, a railway, as long as it complied with the requirements imposed upon it by applicable statutes, regulations and administrative orders, was under no further obligation ‑‑ absent extraordinary circumstances ‑‑ to act in an objectively reasonable manner. Its effect was to excuse railway companies in most cases from the ordinary obligation of prudence. The courts in applying this rule implicitly recognized that statutory compliance cannot replace the common law standard of care, and can be accepted as a substitute for that standard only in certain circumstances.
With the abolishment of the special rule, the correct principles can be stated more clearly. Compliance with a statutory standard of care does not abrogate or supersede the obligation to comply with the common law standard of care. The requirements are concurrent, and each carries its own penalty for breach. However, in appropriate circumstances, compliance with statutory standards may entirely satisfy the common law standard of care and thus absolve a defendant of liability in negligence.
The weight to be accorded to statutory compliance in the overall assessment of reasonableness depends on the nature of the statute and the circumstances of the case. It should be determined whether the legislative standards are necessarily applicable to the facts of the case. Statutory compliance will have more relevance in “ordinary” cases ‑‑ cases clearly within the intended scope of the statute ‑‑ than in cases involving special or unusual circumstances. It should also be determined whether the legislative standards are specific or general, and whether they allow for discretion in the manner of performance. A party acting under statutory authority must still take such precautions as are reasonable within the range of that authority to minimize the risks which may result from its actions.
Where a statute authorizes certain activities and strictly defines the manner of performance and the precautions to be taken, it is more likely to be found that compliance with the statute constitutes reasonable care and that no additional measures are required. By contrast, where a statute is general or permits discretion as to the manner of performance, or where unusual circumstances exist which are not clearly within the scope of the statute, mere compliance is unlikely to exhaust the standard of care. This approach strikes an appropriate balance among several important policies, including deference to legislative determinations on matters of railway safety, security for railways which comply with prescribed standards, and protection for those who may be injured as a result of unreasonable choices made by railways in the exercise of official authority.
The Railways’ compliance with the statutory and regulatory authorities did not exhaust the requisite standard of care in this case, for two reasons. First, those authorities were not directly applicable to the circumstances, and second, they allowed for significant discretion in the manner of performance.
The common law standard of care is presumed to apply. A regulatory standard, if shown to be clearly applicable, may be accepted as a reasonable substitute. Here, the railways relied on authorities which applied to “highway crossings”. The branch line, however, was not a crossing in the ordinary sense of the railway and highway intersecting at one point but rather it ran down the centre of the street. Important differences exist between the two situations. In particular, the danger posed to two‑wheeled traffic is much greater in the second. A regulatory standard applying to a railway crossing cutting across traffic at a right angle may be wholly inappropriate to a railway branch running down the street. The regulatory standards were accordingly not definitive of the standard of care.
Even if highway crossing regulatory standards were applicable, the Railways’ compliance with those standards did not necessarily constitute reasonable conduct in the circumstances. The regulations allowed a significant range as to flangeway width and the railways exercised their discretion as to the flangeway width within that range. In exercising that discretion, they were bound by the common law and were required to take all reasonable steps to minimize foreseeable harm. The entire range could not be presumed to be reasonably safe in all conditions. The decision to use a wider flangeway width within the limits allowed by regulation raised an issue of reasonableness, not of regulatory compliance. The trial judge’s conclusion was consistent with the correct principles of law, and it should not have been disturbed by the Court of Appeal.
A public nuisance has been defined as any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience. Whether a particular activity constitutes a public nuisance is a question of fact. Many factors may be considered, including the inconvenience caused by the activity, the difficulty involved in lessening or avoiding the risk, the utility of the activity, the general practice of others, and the character of the neighbourhood. Statutory authority provides, at best, a narrow defence to nuisance. The traditional rule is that liability will not be imposed if an activity is authorized by statute and the defendant proves that the nuisance is the “inevitable result or consequence” of exercising that authority. Here, the Railways’ decisions, (i) to exceed the minimum flangeway width and (ii) not to install flange fillers, were a matter of discretion and not the “inevitable result” or “inseparable consequence” of complying with the regulations.
While findings of fact with regard to the allocation of fault are not immutable, they should not be reversed by an appellate court unless it can be established that the trial judge made some palpable and overriding error which affected his or her assessment of those findings. No such errors were made by the trial judge, and the Court of Appeal ought not to have interfered with his findings on the issue of contributory negligence.
Cases Cited
Applied: Anns v. Merton London Borough Council, [1978] A.C. 728; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; considered: Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687; Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181; Grand Trunk Railway Co. v. McKay (1903), 34 S.C.R. 81; Lake Erie & Detroit River Railway Co. v. Barclay (1900), 30 S.C.R. 360; Canadian National Railway Co. v. Vincent, [1979] 1 S.C.R. 364; referred to: Nova Mink Ltd. v. Trans‑Canada Airlines, [1951] 2 D.L.R. 241; Just v. British Columbia, [1989] 2 S.C.R. 1228; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165; Wade v. C.N.R., [1978] 1 S.C.R. 1064; Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Stewart v. Pettie, [1995] 1 S.C.R. 131; Harris v. Canadian Pacific Ltd. (1989), 59 D.L.R. (4th) 151; Anderson v. Canadian National Railway Co., [1944] O.R. 169; Richardson v. Surrey (Dist.) (1990), 43 B.C.L.R. (2d) 210; Bux v. Slough Metals Ltd., [1974] 1 All E.R. 262; Geddis v. Proprietors of the Bann Reservoir (1878), 3 App. Cas. 430; Chessie v. J. D. Irving Ltd. (1982), 22 C.C.L.T. 89; Lord Mayor, Aldermen and Citizens of the City of Manchester v. Farnworth, [1930] A.C. 171; City of Portage La Prairie v. B.C. Pea Growers Ltd., [1966] S.C.R. 150; Schenck v. Ontario (Minister of Transportation and Communications), [1987] 2 S.C.R. 289; Stein v. “Kathy K” (The Ship), [1976] 2 S.C.R. 802.
Statutes and Regulations Cited
Railway Act, R.S.C. 1906, c. 37, ss. 222, 223, 235.
Railway Act, R.S.C. 1970, c. R‑2, s. 196(1).
Railway Act, R.S.C., 1985, c. R‑3, s. 367(4) [rep. & sub. R.S.C., 1985, c. 32 (4th Supp .), s. 110] (formerly R.S.C. 1970, c. R‑2, s. 342(4)).
Railway‑Highway Crossing at Grade Regulations, SOR/80‑748, ss. 2 “crossing”, 7.
Standard Regulations Respecting the Construction of Crossings at Grade, 55 B.T.C. III, (Feb. 1, 1965) (later C.R.C., 1184), ss. 1(3) “crossing”, 6.
Authors Cited
Fridman, Gerald Henry Louis. The Law of Torts in Canada, vol. I. Toronto: Carswell, 1989.
Klar, Lewis N. Tort Law, 2nd ed. Scarborough, Ont.: Carswell, 1996.
Linden, Allen M. Canadian Tort Law, 6th ed. Toronto: Butterworths, 1997.
APPEAL from a judgment of the British Columbia Court of Appeal (1996), 82 B.C.A.C. 40, 133 W.A.C. 40, 36 M.P.L.R. (2d) 35, 22 M.V.R. (3d) 1, [1996] B.C.J. No. 2083 (QL), allowing an appeal in part from a judgment of Owen‑Flood J. (1994), 21 M.P.L.R. (2d) 148, 4 M.V.R. (3d) 59, [1994] B.C.J. No. 1202 (QL). Appeal allowed.
Joseph J. Arvay, Q.C., and Aaron A. G. Gordon, for the appellant.
Richard R. Sugden, Q.C., and Craig P. Dennis, for the respondent The Corporation of the City of Victoria.
William M. Everett, Q.C., and W. S. MacFarlane, for the respondents The Esquimalt and Nanaimo Railway Company and Canadian Pacific Limited/Canadien Pacifique Limitée.
The judgment of the Court was delivered by
//Major J.//
1 Major J. -- This appeal considers the effect of statutory authority on the civil liability of railways. A motorcyclist was injured while attempting to cross railway tracks located on an urban street in Victoria, British Columbia. The motorcyclist sued the City of Victoria (“the City”) and the railway companies which owned and operated the tracks (“the Railways”). The Railways denied liability on the ground that the tracks were authorized by, and complied with, all applicable statutes, regulations and administrative orders.
2 The first issue is whether the Railways are liable in negligence. Under a long-standing common law rule, the standard of care owed by railways to the public was normally limited to the discharge of statutory obligations. The question is whether that rule should now be discarded, and if so, how statutory compliance should affect the assessment of liability under ordinary negligence principles.
3 The second issue is whether the Railways are liable in public nuisance. Again, the Railways disclaim liability on the ground that the tracks involved were authorized by statute and regulations. The appellant submits that such a defence is unavailable because the hazard posed by the tracks was not an “inevitable consequence” of exercising statutory authority. The final issue is whether the Court of Appeal erred by reversing the findings of the trial judge with respect to contributory negligence.
I. Facts
4 On May 4, 1987, the appellant, Murray Ryan, was thrown from his motorcycle while attempting to cross railway tracks running down the centre of Store Street, in downtown Victoria. The tracks were owned by the respondent Esquimalt & Nanaimo Railway Company (“E&N”), and were leased and operated by the respondent Canadian Pacific Limited (“CP”). The accident occurred when the front tire of the appellant’s motorcycle became trapped in a “flangeway” gap running alongside the inner edge of the tracks. At the time of the accident, the flangeways on Store Street were approximately one-quarter of an inch wider than the front tire of the appellant’s motorcycle.
A. History and Location of the Store Street Tracks
5 In 1907, E&N applied to the Board of Railway Commissioners of Canada (the “Board”) for permission to construct a branch line along a portion of Store Street. E&N submitted a “plan, profile and book of reference” to the Board, setting forth the specifications of the proposed tracks, pursuant to s. 222 of the Railway Act, R.S.C. 1906, c. 37 (“1906 Railway Act”). In addition, E&N entered into an agreement with the City regarding the maintenance and operation of the line; the terms of that agreement were subsequently passed into municipal law. On March 6, 1908, in accordance with s. 223 of the 1906 Railway Act, the Board issued Order No. 4421 authorizing the construction of the tracks.
6 E&N leased its railway operations to CP in July of 1912. By 1926 it came to CP’s attention that a discrepancy existed between the terms of the 1908 Order and the actual location of the Store Street tracks. In particular, the original plans did not specify that the tracks would cross through traffic on Chatham Street, a side road which intersects Store Street near one end of the tracks. CP applied to the Board for a revised authorization of the tracks as constructed. On January 18, 1927, the Board issued Order No. 38682, endorsing the existing location of the tracks with specific reference to the Chatham Street crossing. That order provided:
THE BOARD ORDERS that the Applicant Company be, and it is hereby, authorized to revise the location of its branch line of railway from a point on its right of way at the easterly limit of Johnson Street Bridge, thence north-easterly and northerly along Store Street, across Chatham Street, to and into Block D, in the City of Victoria and Province of British Columbia, as shown on the said plan and profile on file with the Board under case No. 2717; the crossing of Chatham Street to be constructed in accordance with “The Standard Regulations of the Board Affecting Highway Crossings, as amended May 4th, 1910.”
Track reconstructions were undertaken in 1944 and 1982, but as those projects did not significantly alter the location of the tracks, no further orders were obtained from the Board. Rail traffic on the Store Street tracks declined steadily over the years and the tracks were removed in 1993.
B. Dimensions of the Flangeways on Store Street
7 When railway tracks run across a street or highway at grade, the rails are normally embedded in the pavement so as not to impede traffic. A groove called a “flangeway” is installed alongside the tracks in order to prevent derailments while permitting the running rails to remain flush with the road surface. The most durable and inexpensive way to construct flangeways is to lay scrap rail, or “flangerail”, on its side next to the running rail to create a gap between the track and the surrounding pavement or planking. This process was approved by the Board in Order No. 9729 (February 29, 1910) as the standard design for CP highway crossings, and it has remained the accepted method of constructing flangeways in Canada for many years.
8 Regulations issued by the Canadian Transport Commission in 1965 and 1980 provide that flangeways at “crossings” may be anywhere from 2.5 to 4.75 inches wide. The same dimensions are adopted in CP’s own Standard Practice Circular 29. It is common ground that the flangeways on Store Street have always remained within that prescribed range. From 1944 to 1982, the flangeways were between 2.75 and 3.25 inches wide. During the 1982 reconstruction, the existing flangerail was torn out and replaced with heavier-gauge flangerail on its side; as a result, the flangeways were enlarged to a width of between 3.75 and 3.94 inches.
9 Despite arguments to the contrary by the respondents, the trial judge found that at the time of the appellant’s accident, methods and technologies were available which, if employed, could have eliminated the flangeway gaps on Store Street entirely, or reduced them to the minimum width -- 2.5 inches -- required under the “crossings” regulations. Those methods included the use of rubber-type “flange-fillers”, which are inserted into a flangeway to create an even surface for road traffic while compressing under the weight of train wheels. In particular, the trial judge found that the flange filler “Epflex” was available in 1982 and was in use in Waterloo, Ontario on tracks which, as here, ran down the centre of an urban street.
C. The Accident
10 Store Street is located in a mixed use area near Victoria Harbour. It is a two-way street with one lane of traffic running in each direction. The railway tracks ran down the middle of the street for approximately four blocks, meandering slowly from one traffic lane to the other in a lazy S-shape. Posted signs warned of a hazard to bicyclists but not to motorcyclists.
11 The appellant entered Store Street on his motorcycle from a side road. Cars were parked on the opposite side of the street, approximately six feet from the tracks. The appellant did not cross the tracks immediately but instead travelled down the centre of Store Street for about two blocks, keeping the tracks on his right. When the meandering of the tracks edged him to his left and into the path of oncoming traffic, he attempted to cross the tracks to the other side of the street. He was moving at about 20-25 kilometres per hour and encountered the tracks at a shallow angle. As he crossed, the front tire of his motorcycle, which was three and one-half inches wide at its perimeter, fell into the flangeway and became wedged there. The motorcycle rotated over the top of the trapped tire, and the appellant was thrown forward and injured. The record confirms that six prior accidents involving the flangeways on Store Street -- five of which also involved motorcycles -- were reported to the Railways or the City of Victoria between 1982 and 1986.
12 Following a lengthy trial, the British Columbia Supreme Court held the Railways and the City jointly and severally liable in negligence, the former for maintaining dangerously wide flangeways and the latter for failing to warn of the hazard. In addition, the trial judge held the Railways liable in nuisance. The British Columbia Court of Appeal set aside the nuisance finding and held all of the respondents liable only for failure to warn. The Court of Appeal also found the appellant to be contributorily negligent and liable for 50% of his damages.
II. Relevant Statutory and Regulatory Provisions
13 One issue is whether the Store Street tracks constitute a “highway crossing” within the meaning of the Railway Act and applicable regulations; this is relevant as there are specific and different regulations for crossings as opposed to a rail line. Section 235 of the 1906 Railway Act provides:
Highway Crossings
235. The railway may be carried upon, along or across an existing highway. . . .
That language is adopted in all subsequent versions of the Act, including s. 196(1) of the Railway Act, R.S.C. 1970, c. R-2. A “crossing” is also defined in s. 2 of the Railway-Highway Crossing at Grade Regulations, SOR/80-748 (“CTC 1980-8 Rail”), and in s. 1(3) of General Order No. E-4: Standard Regulations Respecting the Construction of Crossings at Grade, 55 B.T.C. III, (Feb. 1, 1965) (“General Order No. E-4”), as follows:
“Crossing” means any railway crossing of a highway at grade or any highway crossing of a railway at grade.
The minimum and maximum dimensions permitted for flangeways at a “crossing” are in s. 6 of General Order No. E-4:
6. A space not more than three inches deep and not less than two and one-half inches wide nor more than four and three-quarters inches wide shall be provided between the gauge side of the running rail and the planking and/or other road surface, as the case may be.
A similar requirement appears in metric form in s. 7 of CTC 1980-8 Rail, which replaced General Order No. E-4 and was in force when the Store Street tracks were reconstructed in 1982. That section provides:
7. A flangeway with a width of between 65 mm and 120 mm to a depth of between 50 mm and 75 mm shall be provided between the gauge side of the running rail and the highway surface.
14 The relationship between statutory compliance and civil or criminal liability is addressed generally in s. 367(4) of the Railway Act, R.S.C., 1985, c. R‑3, as am. R.S.C., 1985, c. 32 (4th Supp .), s. 110 (formerly R.S.C. 1970, c. R-2, s. 342(4)):
367. . . .
(4) No inspection under or by the authority of this Act or the Railway Safety Act, and nothing in this Act or the Railway Safety Act and nothing done, ordered, directed, required or provided for, or omitted to be done, ordered, directed, required or provided for, under or by virtue of this Act or the Railway Safety Act, shall, except in so far as a compliance with the Act in question or with the order, direction, requirement or provision, constitutes a justification for what would otherwise be wrongful, relieve, or be construed to relieve, any company of or from, or in any way diminish or affect, any liability or responsibility resting on it by law, either toward Her Majesty or toward any person, or the wife, husband, parent, child, executor, administrator, tutor, curator, heir or personal representative, of any person, for anything done or omitted to be done by that company, or for any wrongful act, negligence, default, misfeasance, malfeasance or nonfeasance of that company.
III. Judicial History
A. British Columbia Supreme Court (1994), 21 M.P.L.R. (2d) 148 (Owen-Flood J.)
15 The trial judge relied on Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687, for the principle that absent “special or exceptional circumstances”, railway companies cannot be found negligent as long as they comply with the Railway Act and with orders or regulations issued under that Act. However, he held that the crucial issue in this case -- the width of the flangeways on store street -- was not governed by any relevant statute or regulation, and in particular was not covered by the regulatory standards which apply to “highway crossings”. In the alternative, he found that “special or exceptional circumstances” existed which required the Railways to exceed the precautions mandated in those regulations. He concluded that the Railways were negligent in failing to build the flangeways at the minimum allowable width or with some form of flange filler.
16 The trial judge also held that the Railways were liable in public nuisance. Relying on Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, he rejected the Railways’ defence of “statutory authority” since, in his view, the hazard created was not an inevitable consequence of discharging any statutory duty. The trial judge also held that the City of Victoria was liable for its failure to provide adequate warnings to the public of the danger on Store Street. He dismissed a nuisance claim against the City on the basis that the City had no property interest in the tracks. Finally, he held that the appellant was not contributorily negligent, since his decision to cross the tracks when and where he did was dictated by circumstances beyond his control and was made in “the agony of the moment”. Because the trial judge could not ascribe degrees of fault to the various respondents, he apportioned liability equally among them.
B. British Columbia Court of Appeal (1996), 82 B.C.A.C. 40 (Goldie J.A., Rowles and Finch JJ.A. concurring)
17 The Court of Appeal held that because the Railways had complied with all applicable regulations, they could not be found negligent with regard to the configuration of the Store Street tracks: see Paskivski, supra. It noted that the method used to build the flangeways on Store Street was standard for highway crossings in Canada. The Court of Appeal also emphasized that the width of the flangeways was within the allowable range defined in the “highway crossing” regulations, which he held to be applicable to the Store Street line. It rejected the trial judge’s view that the location of the tracks on a city street was an “exceptional circumstance” which required the Railways to take steps beyond the standards required in those regulations. The trial judge’s finding of negligence was set aside.
18 The Court of Appeal also reversed the trial judge’s holding with respect to nuisance, on the basis that the Railways were protected by the defence of statutory authority. In the Court of Appeal’s view, the danger posed by the flangeways was an “inseparable consequence” of the Board orders which required the tracks to be laid at street grade with pavement between the rails. However, the Court of Appeal did find that both the Railways and the City were at fault for failing to warn the public of the hazard created by the flangeways. Finally, the Court of Appeal reversed the trial judge’s conclusion that there was no contributory negligence. It found that the appellant had chosen to remain on the more dangerous of several possible courses and therefore could not claim to have acted in the “agony of the moment” when he crossed the tracks. The Court of Appeal concluded that the appellant was liable for 50% of his damages.
IV. Issues
19 The respondents have not challenged the finding that they were liable for failing to warn the appellant of the hazard created by the flangeways on Store Street. That conclusion is not at issue in this appeal. The three issues are:
1. Did the Court of Appeal err in finding that the Railways were not negligent with regard to the width of the flangeways on Store Street?
2. Did the Court of Appeal err in finding that the flangeways on Store Street did not give rise to liability for public nuisance?
3. Did the Court of Appeal err in reversing the trial judge’s findings with respect to contributory negligence?
V. Analysis
20 This appeal focuses on the relationship between statutory authority and civil liability. The appellant submits that the Railways are liable under theories of negligence and nuisance for installing dangerous flangeways on Store Street. The Railways deny liability on the basis that the Store Street line is a “highway crossing” and its flangeways comply in all respects with the safety regulations governing such crossings. The questions are: (1) whether the regulations relied upon by the Railways are in fact applicable to the Store Street line, and (2) if so, whether the Railways are nevertheless liable for failing to exercise their discretion under those regulations so as to minimize the hazard created by the flangeways.
A. Were the Railways Negligent with Regard to the Width of the Flangeways on Store Street?
21 The first step in the negligence analysis is to determine whether the Railways owed a duty of care to the appellant with regard to the configuration of the Store Street tracks. If such a duty is found to exist, it must then be determined whether the Railways exercised the standard of care necessary to avoid breaching that duty. The relationship between the duty and the standard of care was explained by MacDonald J.A. of the Nova Scotia Court of Appeal in Nova Mink Ltd. v. Trans-Canada Airlines, [1951] 2 D.L.R. 241, at p. 254:
It is the function of the Judge to determine whether there is any duty of care imposed by the law upon the defendant and if so, to define the measure of its proper performance; it is for the [trier of fact] to determine, by reference to the criterion so declared, whether the defendant has failed in his legal duty.
. . .
The common law yields the conclusion that there is such a duty only where the circumstances of time, place, and person would create in the mind of a reasonable man in those circumstances such a probability of harm resulting to other persons as to require him to take care to avert that probable result. This element of reasonable prevision of expectable harm soon came to be associated with a fictional Reasonable Man whose apprehensions of harm became the touchstone of the existence of duty, in the same way as his conduct in the face of such apprehended harm became the standard of conformity to that duty. . . .
Thus, a discussion of duty centres around its existence, while the standard of care clarifies what the content of the duty is. Where there is no duty there is no negligence.
1. Duty of Care
22 The duty of care owed by a railway with respect to public crossings is determined, as it is for other private and public actors, under the two-step test in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), at pp. 751-52, which was adopted by this Court in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2, and numerous subsequent decisions. See, e.g., Just v. British Columbia, [1989] 2 S.C.R. 1228; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165. The two stages of the test were restated by Wilson J. as follows in Kamloops, at pp. 10-11:
(1) is there a sufficiently close relationship between the parties (the [defendant] and the person who has suffered the damage) so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person? If so,
(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?
23 The first step of the Anns/Kamloops test presents a relatively low threshold. In order to establish a prima facie duty of care, it must be shown that a relationship of “proximity” existed between the parties such that it was reasonably foreseeable that a careless act by the Railways could result in injury to the appellant.
24 The second step of the Anns/Kamloops test requires that it be determined whether any factors exist which should eliminate or limit the duty found under the first branch of the test. This approach recognizes that while the test of “proximity” may be met, liability does not necessarily follow. The existence of a duty of care must be considered in light of all relevant circumstances, including any applicable statutes or regulations. Thus, a legislative exemption from liability can negate a duty of care in circumstances where that duty would otherwise arise. The same holds true for immunities created by the courts. A policy decision is made in such cases to prevent the law of negligence from regulating certain relationships or relieving certain injuries, notwithstanding a finding of proximity between the parties. This may reflect the need to shield specific activities from judicial control, or the wish to prevent the “floodgates of litigation” from opening into areas of potentially unlimited liability. See, e.g., Allen M. Linden, Canadian Tort Law (6th ed. 1997), at p. 275.
25 In addition to negating a duty of care entirely, policy considerations may also serve to “limit” the “scope” of an existing duty under the second step of the Anns/Kamloops test. It is necessary to be clear about what this means. The purpose of the Anns/Kamloops test is to establish the existence of a legal duty, not to determine the standard of care required to establish liability. Policy considerations do not give rise to “greater” or “lesser” duties in different cases. A duty of care either exists or it does not. As discussed below, when the language of “duty” is framed in terms of its degree or content, what is really at issue is not the duty but the applicable standard of care. While the distinction is obvious, courts from time to time seem to lose sight of that principle. See, e.g., Wade v. C.N.R., [1978] 1 S.C.R. 1064, at p. 1083.
26 The “scope” of a duty of care can be “limited” under the Anns/Kamloops test only in the sense that the duty will arise in certain situations and not in others. Such limitations may be based on broad policy considerations such as efficiency and economic fairness (see Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, at pp. 1155-60) or on specific principles of law which operate in particular cases. See, e.g., Hercules, supra, at paras. 31-41, and Just, supra, at pp. 1235-36. The ultimate determination of whether a duty of care arises or not is an issue properly framed within the second step of the Anns/Kamloops test and its answer depends on the factual and legal context of each case. In that sense, the test is highly flexible.
27 However, the Anns/Kamloops test is not concerned with legislative or judicial policies which, as in this case, define the conduct required to meet an existing duty. Such policies relate to the standard of care. As a practical matter, the distinction between limiting the “scope” of a legal duty under the Anns/Kamloops test or limiting the requisite standard of care to discharge that duty is an elusive one. Both formulations go to reducing a defendant’s exposure to liability, and in most cases the outcome will be the same under either approach. As a matter of analytical coherence, however, the distinction is important. See Lewis N. Klar, Tort Law (2nd ed. 1996), at p. 247, and Just, supra, at pp. 1243-44. Without it, the entire analysis of duty and standard would be collapsed together into the Anns/Kamloops framework, a purpose for which that test was not designed.
2. Standard of Care
28 Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
29 Legislative standards are relevant to the common law standard of care, but the two are not necessarily co-extensive. The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness. See R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Thus, a statutory breach does not automatically give rise to civil liability; it is merely some evidence of negligence. See, e.g., Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 36, and Saskatchewan Wheat Pool, at p. 225. By the same token, mere compliance with a statute does not, in and of itself, preclude a finding of civil liability. See Linden, supra, at p. 219. Statutory standards can, however, be highly relevant to the assessment of reasonable conduct in a particular case, and in fact may render reasonable an act or omission which would otherwise appear to be negligent. This allows courts to consider