Alberta Court of Appeal upholds ruling: City negligent in CTrain attack

Update added January 9, 2020:TheSupreme Court of Canada dismissed the City of Calgary's request to appeal a lower court decision that found it liable for incremental damagessuffered by Kyle McAllister.His lawyer , Trevor McDonald, says the next step is a hearing to determine possible compensation for the damages that McAllister suffered.

Alberta's highest court has upheld the key findings of a Court of Queen's Bench ruling that found the City of Calgary liable for the injuries suffered by Kyle McAllister, who was attacked on the pedestrian overpass at the Canyon Meadows LRT station in the early hours of New Year's Day2007.

But the decision spells out the city is liable only for injuries 10 minutes after the attack started.

The recent decision 12 years after the vicious assault sets the stage for a trial to determine how much the city should compensateMcAllisterfor his injuries.The decision has some privacy experts fearing increased surveillance and monitoring of city owned facilities and public spaces.

The three members of the Alberta Court of Appeal ruled unanimously that the city breached its "duty of care"owed to McAllister by failing toprovide a safe and secure transit environment.

It confirmed the trial judge's finding that the lighting, video surveillance and monitoring at the LRT station was"deficient" and prevented a timely response to prevent the attack, which lasted 20 minutes.

Watch security footage from the CTrain attack

5 years ago

Duration 0:30

The "deficient" video surveillance prevented a timely response to prevent the attack, found Alberta's appeal court. (Court exhibit)

However, the appeal court did say the city should be liable only for McAllister's injuries suffered after the first 10 minutes of the attack. The appeal court ruled that a 10-minute response time is reasonable, setting aside the six-minute time frame suggested by the trial judge.

The judges wrote:"The city is liable for the incremental damages suffered by the respondent, after the reasonable response time of 10 minutes."

The victim welcomed the ruling.

"He's happy with the decision," said Trevor McDonald, McAllister's lawyer.

"We still feel that a response time of between six and 10 minutes is reasonable in all the circumstances. But he is delightedwith the fact that the Court of Appeal upheld the finding of negligence against the city," said McDonald.

McAllister, who was 18 at the time, was initially attacked by two youths on the overpass, but several other people joined in, inflicting a number of kicks and punches over that 20-minute period.

The city was, however, in breach of its duty for failure to have in place reasonable systems for detecting and responding to the assault on the respondent.- Appeal Court of Alberta

McAllister was left with a severe concussion, broken orbital bones, several facial fractures, 40 stitches and damage to his teeth.

McDonald says he cannot provide details about McAllister's recovery because of the upcoming trial to determine what Kyle's damages are.

"He broke or fractured nearly every bone in his face including his orbital sockets. He had a very severe concussion and a head injury. And it's been a long road to recovery."

"The next stage of this litigation will determine what damages should be paid to him to compensate him for his injuries and the setbacks he's had in his career and education," said McDonald.

The city says it has until the end of the month to decide whether it will seek leave to appeal to the Supreme Court of Canada.

"With respect to the McAllister lawsuit, the city has reviewed the Court of Appeal decision and is in the process of considering its next steps," read an emailed statement to the CBC.

Back in 2007, the city had approximately 337 CTrain system cameras 25 near the Canyon Meadows station. Staff monitored the cameras on 42 display monitors, which cycled through images from each camera every three to four seconds.

In the decade since the attack, lighting, cameras and security patrols have all been improved.

The two young offenders involved in the attack pleaded guilty to assault and aggravated assault. One was given a one-year sentence in open custody, while the other was sentenced to 45 days in closed custody.

Ruling raises privacy, surveillanceconcerns

The Privacy and Access Council of Canadasays the decision raises concerns about the level of monitoring and surveillance required by the city, since the appeal court judges ruled the city breached its duty "for failure to have in place reasonable systems for detecting and responding to the assault."

"The Court of Appeal decided that anytime there is an incident, which they neglected to define, the city must be able to detect that incident within five minutes and have emergency responders on scene within another five minutes," said council president Sharon Polsky.

"In essence, the court said there needs to be surveillance cameras to be able to meet the new duty to detect. That applies therefore to all municipalities," she said.

Polsky believes the judgment applies to all city property, including parks and bike paths, and could require the city to install more video surveillance in those areas, compromising privacy.

"So law abiding citizens,visitors to the city,everybody who just goes for a stroll and is minding their own business, not doing anything illegal, they will now be on surveillance cameras. It [the judgment] basically ordered a surveillance state," she said.

McAllister's lawyer disagrees.

"I don't think there's any validity to that concern," said McDonald.

"The Court of Appeal was very careful to distinguish between public facilities where the city earns revenue and conducts business, such as a transit station, as opposed to a more open and unsupervised place such as a municipal sidewalk or a park," he said.

He says that since McAllister was attacked, the city has doubled the number of cameras on the LRT system.

"Where they may decide that they need to impose additional surveillance to protect potential victims of violent crime, that's going to be up to them."

The city is not providing any specific numbers regarding security cameras at or near CTrain stations, saying it would defeat the purpose of its security protocol.

McDonald expects the trial that could determine damages owed to McAllister will be held sometime next year.