On January 28, 1999, the Supreme Court of Canada proved once again how the course of the common law, when it comes to civil remedies, can be determined by the decisions it makes in cases of little renown. In Ryan v. Victoria (City) et al., S.C.C. No. 25704; [1999] S.C.J. No. 7, http://www.droit.umontreal.ca/doc/csc-scc/en/rec/ index.html, the top court ruled in favour of Murray Ryan, who was thrown from his motorcycle when his front tire was trapped in a "flangeway" gap running along side the inner edge of a rail track. The track was owned by the Esquimalt & Nanaimo Railway Company, leased to Canadian Pacific Limited, and authorized by the City of Victoria.

In the course of finding these defendants liable for Mr. Ryan's injuries, the court ever so quietly abolished a "special rule" of the common law rooted in the economic and social importance of the railways to the development of Canada at the turn of the century. For more than 90 years, railway companies were exempted from the law of negligence which governs other members of society, as long as their actions complied with applicable minimum standards set out in statutes, regulations and administrative orders. With the backing of a unanimous court, Mr. Justice Major held that "the time has come for that rule to set aside." In doing so, the court reversed its own decision in Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687, which nevertheless contained calls for reform of the rule. In Ryan, the court appears to be in the final stretch of a project to bring governmental and regulated entities into a unified theory of tort law, starting with the controversial House of Lords decision in Anns v. Merton London Borough Council, [1978] A.C. 728 (from which subsequent U.K. courts have retreated, but which has been consistently adopted in Canada since City of Kamloops v. Nielson, [1984] 2 S.C.R. 2), for duty of care, and R. in the right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, for standard of care.

At first glance, the abolition of a common-law privilege for railways might appear to be of interest only to railway owners and operators and to those suffering harm arising from their equipment and operations. If we examine the socio-economic justification for doing away with the exclusion, however, there is little doubt that the court is sending a broader message. The decision calls upon those who represent the interests of governmental, municipal, and institutional target defendants, and of their insurers, to reconsider some of the legal defences involved in their sources of exposure. In cases relying on "special" common-law defences, all bets are off. Problems may occur in claims ranging from the commonplace to the esoteric, and in unexpected ways.

The example which most readily comes to mind is the "trip-and-fall" action against municipalities. In Ontario, the 1996 amendments to section 284 of the Municipal Act, R.S.O. 1990, chap. M.45, took some steps to right the balance of the statutory cause of

action for accidents arising from disrepair of a highway, previously much more weighted in the favour of the plaintiffs. The changes did not, however, affect the long-standing distinction in the common law between the standard of repair of sidewalks and crosswalks, on the one hand, and the vehicular portion of the road, on the other. The leading case, upon which a generation of counsel has relied, remains the majority opinion of Mr. Justice Aylesworth in the Court of Appeal decision in Sutherland v. Town of Port Credit, [1968] 1 O.R. 175 (C.A.). In that case, the municipality successfully defended on the ground that the depression in the highway was close to but outside the boundaries of the crosswalk. The municipality, in effect, would not have been liable to the plaintiff unless the disrepair also posed a threat to the safety of vehicular traffic. This expression of the law has served to guide defendants and their representatives' handling of claims by pedestrians who have fallen into or tripped over potholes, tram rails and other road imperfections in the vehicular portion of the road allowance. It has also check plaintiffs' lawyers from advising clients to sue.

In his inimitable style, Mr. Justice Laskin (then on the Court of Appeal) wrote a dissent to presage the future direction of this area of law. "I do not think," he stated, "that the obligation of the municipality towards pedestrians should be reduced in this case simply because the hole was literally outside the white lines of the crosswalk." The same reasoning could apply to pedestrians stepping off the curb into potholes at the side of the road or falling over raised utility equipment. In Ryan, Mr. Justice Major relied heavily on the decision in Paskivski of the same Mr. Justice Laskin, Chief Justice of the Supreme Court. Mr. Justice Laskin, although reluctantly concurring in the result which upheld the old rule immunizing railways, severely criticized the relevance of the rule in modern times.

While it may be the rarest of trip-and-falls in which the quantum of damages warrants the case being taken to the Supreme Court of Canada, the effect of Ryan may very well be that some trial judges will see it as a call to follow Mr. Justice Laskin's dissent. Ryan, once it is noticed in the plaintiffs' bar, will certainly embolden some to advance cases which would hitherto have been discouraged.

From a broader perspective, Ryan should send a message to traditional target defendants that minimum regulatory standards can operate as swords for plaintiffs and fail as shields for defendants. This has been the law since Saskatchewan Wheat Pool, but this new decision, in its toppling of what had been an immutable substantive rule, requires everyone to put the word out once again. If observance of the statute or regulation failed to prevent the harm from happening, count on the courts to find the conduct of the defendant equally lacking.