Winnipeg Free Press - PRINT EDITION

Don't pull the cord on sidewalk bylaw

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As a newly minted lawyer in 2008, I took on a case involving injuries to my client C.A. She had tripped on an extension cord running from a house to a residential street. This is not exactly the type of case that wins plaudits or fame, but it is instructive given recent news about tickets given to "illegal plug-in parkers" (to quote a recent headline).

The incident took place in late January, 2008. My client C.A., an elderly lady with a history of shoulder problems, was walking down a residential street towards her job. She worked part time as a house cleaner and had an early morning appointment.

It was dark out, cream-popping cold, and the frozen ground was dusted with a fine layer of snow. In other words, it was Winnipeg in January. While walking down a sidewalk running between a row of houses and the street, C.A. tripped on an extension cord plugged into a car parked on the street. C.A. fell and aggravated her shoulder problem. The cord, which powered a block heater, was unfortunately partly concealed by the thin layer of snow and shrouded in darkness.

As a result of the accident, C.A. had to undergo numerous physiotherapy treatments and could not work for a period of time. Seeing obvious negligence on the part of the plug-in parker, I served notice on the owner of the vehicle and home, one in the same, indicating that we would sue for damages.

You may surprised to learn this case went all the way to the Manitoba Court of Appeal.

The litigation process started with a smart decision on the part of the homeowner. They immediately notified their home insurer. From then on, I dealt with a representative of Aviva Canada who was quite competent and dealt with the case professionally.

Unfortunately, Aviva took the position the accident was caused by an automobile or the use of an automobile and that C.A. should make a claim with MPIC under the Personal Injury Protection Plan (PIPP). Doubly unfortunate was the fact an MPIC case manager took the opposite position. Just like the extension cord, C.A. was stuck between two immobile objects.

Both sides could not be right, so we ended up taking the least costly route to force a resolution. We appealed to an MPIC internal review officer who agreed with the case manager. When that failed to move Aviva's position, we decided to appeal to the independent Automobile Injury Compensation Appeal Commission (AICAC).

The AICAC panel for the case ended up being a group of three heavy-hitters in the legal community: Mel Myers, QC, Trevor Anderson (former dean of Robson Hall) and Guy Joubert. Luckily, even though C.A. was the appellant, I was able to sit on the fence and let lawyers for MPIC and Aviva do the real arguing. The panel sided with MPIC and ruled the accident was an incident that falls outside the coverage of the PIPP.

If you want the full eight-page decision, which is most unlikely, feel free to look up File No. AC-09-83 on the AICAC's website. The story mercifully has an ending. Aviva sought leave with the Manitoba Court of Appeal to challenge the AICAC's decision. In October of 2010, Justice Steel denied leave, essentially leaving the AICAC decision to stand.

What does this case have to do with recent ticketing for bylaw infractions? What can we learn? First, actions have consequences: if you run your extension cord over a sidewalk, you only have yourself to blame if someone gets hurt. Second, check with your home insurer before running that cord -- the insurer may not want to cover you. That means you will have more than a $100 ticket to worry about. Third, let's leave the impugned city bylaw in place. We have it there for a reason.

And finally, if you are a first-year law student, read Dickens' case of Jarndyce v. Jarndyce in Bleak House before deciding if a career in law is for you.

 

Andrew Moreau is not currently practising law.

Republished from the Winnipeg Free Press print edition February 8, 2014 A15

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