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.//

1Major 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.

2The 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.

3The 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

4On 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

5In 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.

6E&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

7When 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.

8Regulations 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.

9Despite 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

10Store 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.

11The 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.

12Following 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

13One 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.

14The 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.)

15The 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.

16The 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)

17The 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.

18The 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

19The 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

20This 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?

21The 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

22The 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?

23The 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.

24The 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.

25In 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.

26The “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.

27However, 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

28Conduct 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.

29Legislative 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 the legislative framework in which people and companies must operate, while at the same time recognizing that one cannot avoid the underlying obligation of reasonable care simply by discharging statutory duties.

30The foregoing view, though generally accepted, has long been resisted in railway cases. For more than 90 years, railway companies have benefited from a “special rule” at common law which placed them in a privileged position within the law of negligence. As long as a railway complied with the requirements imposed upon it by applicable statutes, regulations and administrative orders, it was under no further obligation -- absent extraordinary circumstances -- to act in an objectively reasonable manner. This rule has usually been framed in terms of limiting the “duty of care” owed by railways to the public. It is more easily understood as limiting the standard of care which railways must meet under an existing legal duty. Either way, the effect of the rule was the same: it excused railway companies in most cases from the ordinary obligation of prudence which governs other members of society.

31The roots of the special rule reach back to the turn of the century, when railways occupied a position of unparalleled economic and social importance in the development of Canada. In Grand Trunk Railway Co. v. McKay (1903), 34 S.C.R. 81, this Court held that the safety measures prescribed by the Railway Act and the Board of Railway Commissioners were exhaustive, and railways could not be held liable for failing to take precautions beyond those requirements. The harshness of that doctrine was tempered somewhat by a separate line of cases, beginning with Lake Erie & Detroit River Railway Co. v. Barclay (1900), 30 S.C.R. 360, which held that in the event of exceptional danger or extraordinary conditions, a railway would be required to take greater safety measures than those officially prescribed. The McKay and Barclay doctrines have been combined in subsequent judgments to yield the current rule, which was restated by Dickson J. (as he then was) in Paskivski, supra, at pp. 698-99:

A long line of cases . . . establishes that a railway company’s duty of care to users of public crossings is limited to discharge of statutory obligations under the Railway Act . . . and compliance with orders of the Canadian Transport Commission -- unless there are special or exceptional circumstances, in which event a common law duty of care will require additional precautions or safeguards.

32This Court upheld the special rule in Paskivski, but it did so with reluctance. Dickson J. questioned the ongoing relevance of the rule at p. 708:

The past seventy years have wrought many changes within Canada and today one might perhaps be inclined to question the relevance and validity of a rule of law which limits the common law duty of care of a railway to the special case or the exceptional case, particularly if those words are to receive a strict or narrow construction. It may well be that the interests of a young and undeveloped nation are best served by a minimum of impediment to industrial growth and economic expansion but in a more developed and populous nation this attitude of laissez faire may have to yield to accommodate the legitimate concern of society for other vital interests such as the safety and welfare of children.

Laskin C.J., concurring in the result reached by Dickson J., was even more pointed in his criticism of the rule, at pp. 689-90:

. . . I am unable to appreciate why railway companies, in the conduct of their transportation operations, are today entitled to the benefit of a special rule, more favourable to them, by which their common law liability is to be gauged. When all allowances are made for the force and legal effect of the rules and regulations of the regulatory agency, the Canadian Transport Commission, to which railway companies are subject, and when the question of their liability turns on the common law of negligence, as is the case here, they cannot claim to be judged by any different standards than those that apply to other persons or entities charged with liability for negligence.

33The calls for reform expressed 24 years ago in Paskivski are more compelling today. The special status enjoyed by railway companies under the law of negligence can no longer be justified in principle and the time has come for that rule to be set aside. Although a doctrine of such long standing should not lightly be discarded, there is little to be gained from maintaining for its own sake a line of jurisprudence which has lost its relevance.

34The Railways contend that the McKay/Barclay rule should be preserved in deference to the expertise of the Board (now the Canadian Transportation Agency) on matters of railway safety. That argument is unpersuasive. The orders of an administrative board may be relevant to the determination of reasonable behaviour in specific circumstances. However, as noted, such orders do not oust the underlying standard of reasonableness imposed by common law. A railway, like any other company or individual, is subject to generally applicable principles of negligence, and should not enjoy special protection when its actions or omissions cause harm to other members of society. See Harris v. Canadian Pacific Ltd. (1989), 59 D.L.R. (4th) 151 (B.C.C.A.), at pp. 154-55.

35It is useful to note that even when applying the McKay/Barclay rule, courts have 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. Thus, in “ordinary” cases, compliance with the statute has been held to exhaust the requirement of reasonable conduct; in “exceptional” cases, however, the statutory standard has been deemed “insufficient” and the common law has been retrieved to fill the gap. As Robertson C.J. stated for the Ontario Court of Appeal in Anderson v. Canadian National Railway Co., [1944] O.R. 169, at p. 177:

. . . under ordinary circumstances, the railway is permitted to carry on its usual operations in the normal way, at a highway level crossing, without other precautions and warnings than are prescribed by the Railway Act or by the Board, but if the operations are carried on in such a way, or are of such a character, that the public using the crossing is exposed to exceptional danger . . . or if there are exceptional circumstances . . . that render ineffective or insufficient the precautions and warnings generally prescribed, then, in such cases, it may be left to a jury to say whether or not the railway has been negligent in failing to adopt other measures for the protection of those who may use the crossing.

36The problem with the McKay/Barclay rule was that instead of focusing the analysis on whether statutory compliance by the railway was reasonable in the circumstances, it assumed that step as a matter of law and forced the plaintiff to rebut the presumption. See, e.g., Richardson v. Surrey (Dist.) (1990), 43 B.C.L.R. (2d) 210 (B.C.C.A.), at p. 214. With the abolishment of the special rule, the correct principles can now 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. See Bux v. Slough Metals Ltd., [1974] 1 All E.R. 262 (C.A.).

37This approach is consistent with the holding in Canadian National Railway Co. v. Vincent, [1979] 1 S.C.R. 364. Although Vincent arose in the context of Quebec civil law, the reasoning of Pratte J. in that case is instructive, particularly since the common law standard of care is analogous to the requirement of reasonable prudence under the Civil Code. The facts in Vincent were straightforward. A child was struck by a train while riding her bicycle on a railway crossing in a densely populated area. It was undisputed that the railway had complied with all relevant safety measures prescribed by statute and regulations. The issue was whether the railways should have taken additional precautions in the circumstances of the case. Pratte J. stated at pp. 372-73:

It must be said at the outset that, under the verdict, appellant is not held liable by reason of any breach of the Railway Act . . . or of the regulations of the Canadian Transport Commission. The issue is rather whether appellant can be found guilty of negligence under . . . [the Civil Code], although it complied with all the special statutory and regulatory provisions to which it is subject. The special provisions governing appellant certainly do not have the effect of exempting it from the ordinary law of civil liability. Savatier in Traité de la responsabilité civile en droit français, Vol. 1, No. 181, at p. 225, said the following on this point:

[translation] 181. Fault despite compliance with regulations.

When the regulatory authority intervenes to prescribe certain safeguards, it does so in the interest of third parties, not to their detriment. Except where otherwise provided, the precautions it is prescribing must therefore be viewed as being in no way exhaustive, and as not preventing those subject to the regulation from being also bound, apart from it, by any other obligations to exercise prudence.

38Additional support for this view can be found in s. 367(4) of the Railway Act which provides:

367. . . .

(4) No inspection under or by the authority of this Act . . . and nothing in this Act . . . and nothing done, ordered, directed, required or provided for, or omitted to be done . . . under or by virtue of this 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 . . . any company of or from, or in any way diminish or affect, any liability or responsibility resting on it by law . . . 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.

Section 367(4) confirms that compliance with statutory standards does not normally exhaust a railway’s obligations under principles of negligence. See Vincent, supra, at p. 373. A railway is presumptively bound by the common law, subject only to those situations where compliance with the statute or regulations provides “a justification for what would otherwise be wrongful”. Like any exculpatory provision limiting common law rights, that passage should be narrowly construed. In the absence of a clear indication to the contrary, compliance with statutory standards should not be viewed as excusing a railway’s obligation to take whatever precautions are reasonably required in the circumstances.

39The 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 -- i.e., cases clearly within the intended scope of the statute -- than in cases involving special or unusual circumstances. See Paskivski, supra, and Anderson, supra. It should also be determined whether the legislative standards are specific or general, and whether they allow for discretion in the manner of performance. It is a well-established principle that an action will lie against any party, public or private, “for doing that which the legislature has authorized, if it be done negligently”. See Geddis v. Proprietors of the Bann Reservoir (1878), 3 App. Cas. 430 (H.L.), at pp. 455-56; see also Kamloops, supra, at p. 11, and Just, supra, at p. 1245. It follows that 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. See Tock, supra (applying similar principles in the nuisance context).

40Where 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.

3. Application to the Case at Bar

41The first question is whether the Railways owed the appellant a duty of care. The Store Street tracks ran down the centre of an urban street, in direct proximity to the public. It was plainly foreseeable that carelessness by the Railways with respect to those tracks could cause injury to users of the street. Accordingly, a prima facie duty of care arose under the first step of the Anns/Kamloops test. See Harris, supra, at p. 155. Turning to the second step of the test, the Railways have not identified any legislative or judicial policies which would negate that duty or limit it. As noted, the authorities relied upon by the Railways concern the manner of carrying out a specific activity, and do not purport to limit civil liability. Those regulations do not affect the existence of a duty of care.

42The standard of care required of the Railways was that of a prudent and reasonable person in the circumstances, having regard to all relevant factors including applicable statutes and regulations. It is undisputed that the Railways complied with certain safety standards prescribed in regulations and Board orders. The question is whether such compliance satisfied the requirement of objective reasonableness in this case and absolved the Railways of liability for the appellant’s injury.

43At the outset, it should be noted that the location of the Store Street tracks does not, by itself, give rise to liability. The construction of a branch line on an urban street inevitably creates a risk to the public. When a party is specifically authorized to create that risk, compliance with such authority cannot be negligent. There is negligence only if, in the performance of the authorized activity, the party creates a risk that is objectively unreasonable in the circumstances. The construction of the Store Street tracks was authorized by the Board in 1908 on the basis of a detailed plan and profile, and the location of the tracks was reapproved in 1927. Pursuant to s. 223 of the 1906 Railway Act, those orders could not have issued unless the Board was “satisfied that the branch line [was] necessary in the public interest or for the purpose of giving increased facilities to business”. It cannot be said that it was unreasonable for the Railways to comply with those orders by constructing the tracks in the manner authorized.

44The real issue is whether the Railways were negligent with respect to the dimensions of the flangeways on Store Street. In particular, it must be determined whether the Railways acted unreasonably by enlarging the flangeways to a width of nearly four inches in 1982, and by failing to install flange fillers at any time prior to the appellant’s accident. This issue has to do with the minimization of risk, and is separate from the Railways’ undisputed duty to warn the public of the inevitable hazard created by the tracks.

45The Railways have cited two sets of authorities in support of their contention that they acted reasonably with respect to the flangeways. First, they submit that the method which they used to construct the flangeways in 1982 -- flangerail on its side -- is the standard design for flangeways at “highway crossings”, as confirmed by Board Order No. 9729 dated February 29, 1910. Accordingly, they contend that they were under no obligation to employ a different method or to use different construction materials, such as flange fillers. Second, they submit that the width of the flangeways on Store Street was within the allowable range for a “railway-highway crossing at grade” as defined in s. 6 of General Order No. E-4. That provision states:

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:

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.

In the submission of the Railways, the foregoing authorities were applicable to the entire Store Street track, and defined the standard of care which was required. Because they complied with that standard, the Railways contend that their conduct was reasonable. The Court of Appeal agreed and reversed the trial judge’s finding of negligence with respect to the flangeways.

46In my view, the Railways’ compliance with the cited 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. These points will be addressed in turn.

(i) Relevance to the Circumstances of this Case

47The authorities relied upon by the Railways apply to “highway crossings”. A typical crossing involves the intersection of a railway and a highway at a single point, usually at a right angle. It does not follow that the standards prescribed for such crossings are also applicable to situations where, as here, a length of railway track is carried along an urban street for several blocks. The evidence in the record is inconclusive on the definition of a “crossing”. The Railway Act provides, under the title “Highway Crossings, etc.”, that a railway “may . . . be carried upon, along or across an existing highway. . .”. See, e.g., Railway Act, R.S.C. 1970, c. R-2, s. 196(1). On the other hand, Board Order No. 38682 (January 18, 1927) stated that only the “crossing of Chatham Street” should comply with regulations governing “highway crossings”, suggesting that the remainder of the Store Street line was not a crossing and was not subject to such regulations. General Order No. E-4 and CTC 1980-8 Rail provide that a “crossing” is “any railway crossing of a highway at grade or any highway crossing of a railway at grade”. The diagrams accompanying those regulations show an ordinary crossing at a perpendicular angle.

48The Railways submitted that because the cited regulations are not expressly limited to “typical” crossings, they should presumptively apply to all situations in which a railway runs across or along a street at grade. That argument misses the point. It is the common law standard of care which is presumed to apply. If a regulatory standard is shown to govern a particular situation, it may be accepted as a reasonable substitute for the common law in that case. However, the regulation must be clearly applicable to a particular circumstance. To borrow the language of the “special rule” cases, the situation must be “ordinary” rather than “special or exceptional”. See Anderson, supra, and Paskivski, supra.

49Regardless of whether the Store Street line can be construed as a “crossing”, it is obviously not a crossing in any ordinary or typical sense. The Railways’ witness, Mr. Palasz, conceded during cross-examination that the Store Street tracks are unlike other highway crossings and are not specifically provided for under existing regulatory standards:

Q. What standards are applied to tracks that run down urban streets as in Store Street?

A. I think Store Street is unique. It is the only track that I know that does run down an urban street. I know there are some others but it’s the only one that I’ve been involved with.

Q. So does CP Rail have any standards that are applicable to tracks that run parallel and down urban streets?

A. None that I’m aware of.

Q. So, the best you can do, as I understand it then, is to try and adapt the standard practice circular that relates to crossings to the situation on Store Street? Is that my understanding of what you were trying to do?

A. We didn’t really have any other specifications to adhere to, so we did take it as a crossing.

Q. So you tried to adapt the crossing standards to the situation on Store Street; do I understand you correctly?

A. Yes, we used it as a crossing at grade standard, yes.

As the trial judge noted, there are important practical differences between a railway line which cuts across traffic at a right angle and one which runs down the centre of a street. In particular, the danger posed by flangeways to riders of motorcycles and bicycles is far greater when those riders must travel alongside the gap for four blocks than when they cross over it once at a steep angle. A regulatory standard which is reasonable in the second situation may be wholly inappropriate in the first. Accordingly, the standards for flangeway widths defined in General Order No. E-4 and CTC 1980-8 Rail are not definitive of the standard of care in this case.

(ii) Discretion Under the Regulations

50Even if the standards for “railway-highway crossing” regulations do apply to the Store Street tracks, the Railways’ compliance with those standards did not necessarily constitute reasonable conduct in the circumstances. General Order No. E-4 and CTC 1980-8 Rail provide that a flangeway may be as narrow as 2.5 inches (65 millimetres) or as wide as 4.75 inches (126 millimetres). The decision to construct a flangeway at a particular width within that range was a matter left to the discretion of the Railways. In exercising that discretion, they were bound by the common law and were required to take all reasonable steps to minimize foreseeable harm. It cannot be presumed that the entire range would be reasonably safe in all conditions. Indeed, the existence of a range instead of a uniform standard suggests that the appropriate width for a flangeway depends in part on the particular facts. The flangeways installed by the Railways in 1982 were between 3.75 and 3.94 inches wide. Had they been narrower by half an inch, the accident at issue in this case would not have occurred. The Railways’ decision with respect to that half-inch raises an issue of reasonableness, not of regulatory compliance.

(iii) Application of the Common Law Standard of Care

51The trial judge correctly held that the Railways were subject to the common law standard of care. In applying that standard, he noted that the Railways have been aware of the risks associated with the flangeways on Store Street for some time. In particular, he found that the Railways knew or should have known of at least three other accidents between 1982 and 1986 which involved the flangeways and two-wheeled vehicles. On the basis of all the evidence adduced, he concluded as follows (at pp. 197-98):

In the case at bar, the defendant Railways ought to have built the flangeways either at the minimum allowable width or with some form of flange filler. It was not enough to proceed on the basis that so long as their flangeways were durable and did not exceed the maximum regulatory standards . . . their neighbours must endure the consequent injuries arising from their “preferred” construction choice.

Because of the hazard created and the remedial measures available to the defendant Railways, I find the defendant Railways were obliged to take precautions over and above those mandated by statute and regulation. This they failed to do.

In the result, I find that the defendant Railways were negligent.

The trial judge’s conclusion is consistent with the principles stated above. It was a proper exercise of his role as the finder of fact, and it should not have been disturbed by the Court of Appeal. Accordingly, the appeal is allowed with respect to the claim of negligence against the Railways.

B. Did the Flangeways on Store Street Give Rise to Liability for Public Nuisance?

52The doctrine of public nuisance appears as a poorly understood area of the law. “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”: see Klar, supra, at p. 525. Essentially, “[t]he conduct complained of must amount to . . . an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference”: See G. H. L. Fridman, The Law of Torts in Canada, vol. I (1989), at p. 168. An individual may bring a private action in public nuisance by pleading and proving special damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982), 22 C.C.L.T. 89 (N.B.C.A.). Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. See ibid., at p. 94.

53Whether or not 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. See Chessie, supra, at p. 94. The trial judge found, at p. 206, that “the configuration and design of the railway tracks on Store Street constituted an unreasonable interference to the public of its right of access”. He noted that Store Street was a mixed retail, industrial, and commercial area, and that the Railways should have foreseen the hazard posed by the flangeways to riders of two-wheeled vehicles. He found, at p. 207, that the cost of that hazard should be borne by the Railways as a matter of policy:

In this case, the defendant Railways clearly installed that particular flange-rail system without regard to vehicular traffic. It was chosen because it cost less, and it was longer lasting and better suited to the needs of the rail traffic. However, the result of this choice of flange-rail, which created an almost 4-inch gap, was to effectively increase the risks to vehicle traffic. The cost of that increased risk to others must fall on the defendant Railways. It is a “cost of running the system.”

The Court of Appeal did not dispute the trial judge’s finding that there was an unreasonable interference, but held that the Railways had a defence of statutory authority because “the flangeways were an inseparable consequence of requiring the tracks to be laid at street grade flush with street level and the roadway paved between the rails” (p. 68). The issue is whether the Court of Appeal erred in that conclusion.

54Statutory 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. See Lord Mayor, Aldermen and Citizens of the City Manchester of v. Farnworth, [1930] A.C. 171 (H.L.), at p. 183; 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. An unsuccessful attempt was made in Tock, supra, to depart from the traditional rule. Wilson J. writing for herself and two others, sought to limit the defence to cases involving either mandatory duties or statutes which specify the precise manner of performance. La Forest J. (Dickson C.J. concurring) took the more extreme view that the defence should be abolished entirely unless there is an express statutory exemption from liability. Neither of those positions carried a majority.

55In the absence of a new rule, it would be appropriate to restate the traditional view, which remains the most predictable approach to the issue and the simplest to apply. That approach was expressed by Sopinka J. in Tock, at p. 1226:

The defendant must negative that there are alternate methods of carrying out the work. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. The standard is a higher one. While the defence gives rise to some factual difficulties, in view of the allocation of the burden of proof they will be resolved against the defendant.

56Turning to the facts of this case, the question raised by the traditional test is whether the hazard created on Store Street was an “inevitable result” of exercising statutory authority; that is, whether it was “practically impossible” for the Railways to avoid the nuisance which arose from the flangeways. As noted previously in the context of negligence, the regulations relied upon by the Railways prescribed a minimum width of 2.5 inches for flangeways. The Railways’ decision to exceed that minimum by more than one inch was a matter of discretion and was not an “inevitable result” or “inseparable consequence” of complying with the regulations. The same may be said of the Railways’ decision not to install flange fillers when such products became available after 1982. The flangeways created a considerably greater risk than was absolutely necessary. Accordingly, the Court of Appeal erred in permitting the Railways to assert the defence of statutory authority against the claim for nuisance.

C. Did the Court of Appeal Err in Reversing the Trial Judge’s Findings with Respect to Contributory Negligence?

57In Stein v. “Kathy K” (The Ship), [1976] 2 S.C.R. 802, at p. 808, it was held that 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 learned trial judge made some palpable and overriding error which affected his assessment of the facts”. The record reveals no such errors by the trial judge, and the Court of Appeal ought not to have interfered with his findings on the issue of contributory negligence. Accordingly, the assessment of liability against the appellant for 50% of his damages is set aside.

VI. Conclusions and Disposition

58The Railways were negligent with respect to the width of the flangeways on Store Street. The McKay/Barclay “special rule” is abolished, and the Railways are therefore subject to ordinary principles of negligence. They owed a duty of care to the appellant with respect to the flangeways on Store Street, and that duty required them to exercise reasonable care in the circumstances. Their compliance with regulatory standards did not replace or exhaust that obligation. Because the Store Street tracks are not a typical “highway crossing”, the Railways were required to take precautions beyond mere compliance with the safety standards which govern such crossings. In particular, they should have taken steps to minimize the risk to two-wheeled vehicles by building the flangeways at the minimum allowable width or by installing flange fillers. The trial judge’s finding of negligence was a proper exercise of his discretion as the finder of fact and should not have been reversed by the Court of Appeal.

59The Store Street tracks created an unreasonable interference with the public’s use and enjoyment of Store Street and therefore constituted a public nuisance. The Court of Appeal erred in finding that the Railways were entitled to the defence of statutory authority. The appropriate test is the traditional rule restated by Sopinka J. in Tock, supra. It was not “practically impossible” for the Railways to avoid the nuisance which arose from the flangeways on Store Street. Because the Railways had discretion with regard to the width of the flangeways, their failure to minimize the hazard was not an “inevitable consequence” of exercising regulatory authority.

60The Court of Appeal erred in reversing the findings of the trial judge with regard to contributory negligence. Those findings were not shown to constitute palpable and overriding error.

61Accordingly, the appeal is allowed with costs throughout.