Municipal Policy Defence

Posted by Johannes Schenk on October 30th, 2005 — Posted in Municipal Law

Governmental authorities, including muncipalities, have the benefit of a policy defence in the case of negligence actions. The defence has been raised in scenarios including sidewalk and roadway maintenance, downed traffic signs, tree maintenance, facility maintenance, inspection cases, corrections cases, environmental matters and other operational areas. The argument being that policy decisions governing such operations and based on budgetary factors are not reviewable by the Courts as long as the policy itself is rational and bone fide.

A recent BC Supreme Court decision, Knodell v. The Corporation of the City of New Westminster, et al, 2005 BCSC 1316, examines the policy defence argument in the context of negligent snow and ice removal and the Occupiers Liability Act, RSBC 1996 c. 337. The case concerns a slip and fall on an icy overpass and an allegation of improper sidewalk maintenance. The plaintiff argued that the municipality had failed to clear snow and ice from the overpass and was therfore negligent. The municipality countered that it had conducted its snow and ice removal acccording to policy and as a result was not negligent.

Justice Joyce frames the issues as follows:


[12] The defendant states the issues as follows:

(a) Was the City’s decision with respect to winter sidewalk maintenance a policy decision which is immune from review by a court?

(b) If so, was the City in any way negligent in the implementation of the procedures called for by its policy?

(c) If the policy defence does not apply, were the City’s actions reasonable so as to meet any duty of care imposed by common law or under the Occupiers Liability Act?

[13] If the City is liable, the following additional issues arise:

(d) Was the plaintiff contributorily negligent and, if so, to what degree?

(e) What is the quantum of the plaintiff’s loss and damages?

Justice Joyce continues on with a standard “policy decision” analysis and then discusses the policy defence in light of Occupiers Liability legislation:

[24] In the present case the claim is founded not only in negligence but also under the Occupiers Liability Act, which imposes a statutory duty of care upon the City …

[25] I should have thought that where a statutory duty of care exists the policy/operational analysis simply does not arise. The policy defence, if it applies, negates a common law duty of care. That was the view taken by Sopinka J. in his concurring judgment in Brown at para. 2:

… if a statutory duty to maintain existed as it does in some provinces, it would be unnecessary to find a private law duty on the basis of the neighbourhood principle in Anns v. Merton London Borough Council, [1978] A.C. 728. Moreover, it is only necessary to consider the policy/operational dichotomy in connection with the search for a private law duty of care.

(emphasis added)

[26] It was also the view taken by Southin J. in her concurring judgment in Gobin at para. 65, quoted above, and at para. 67 where she said:

In Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420, Sopinka J. set out correctly, in my opinion, the law of British Columbia.

[27] This is also the view taken by the Ontario Court of Appeal in Kennedy v. Waterloo County Board of Education (1999), 175 D.L.R. (4th) 106, 45 O.R. (3d) 1 [Kennedy] in which the Court held that “the trial judge erred in applying the policy/operational analysis where the Occupiers’ Liability Act prescribes the statutory duty and the standard of care and provides civil liability for breach of that duty”.

[28] That is not to say that the existence of a policy would be irrelevant to the determination whether there is a breach of the statutory duty of care. It is clearly relevant. In determining the standard of care under the Occupiers Liability Act and whether the City has breached the standard of care, it is necessary to consider all relevant circumstances, including budgetary constraints and the availability of personnel and equipment. During such analysis the court would have to consider the reasonableness of the policy as well as whether it was properly carried out.

[29] However, this is not the view taken by my brother Brooke J. in Fox v. Vancouver (City) 22 B.C.L.R. (4th) 126, 2003 BCSC 1492 [Fox]. In that case, Ms. Fox sued the City of Vancouver for damages suffered when she tripped and fell on a sidewalk owned by the City. Her claim was based solely upon the Occupiers Liability Act; she did not advance a common law claim in negligence.

[30] The defendant City argued that it had implemented an inspection system which could not be reviewed on a private law standard of reasonableness, unless it could be said that the decision was not bona fide or was so irrational that it could not constitute a proper exercise of discretion. Alternatively, it argued it took reasonable care to see that the plaintiff and others would be reasonably safe in using the sidewalk and no liability should be found under the Occupiers Liability Act.

[31] The plaintiff argued that the immunity defence depended on the absence of a positive duty, whereas a positive statutory duty existed under s.3 of the Act. The plaintiff’s position was summarized by Brooke J. at para. 14:

What the plaintiff, in essence, is saying is that there is a distinction between a common law claim in negligence in respect of the exercise of statutory powers to maintain and repair streets as against an alleged breach of a statutory duty of care, such as that contained in the Occupiers Liability Act. The plaintiff says that in the first case, the powers are permissive and import a discretion which lends itself to a policy and operational analysis. In the latter case, so says the plaintiff, no such analysis is permitted.

[32] Brooke J. reviewed the authorities, including Just and Brown, distinguished Kennedy and applied the policy immunity defence. At para. 19 he said:

I find that the defendant city made a bona fide policy decision in the exercise of a discretionary power, and that that decision expressed in the Engineering Technician’s Manual is not unreasonable and is a bona fide exercise of discretion based upon social, political and economic factors and not with a view to absolving itself of liability for the harm that the plaintiff sustained when she fell. As such, it is not reviewable by this court other than with respect to its operational aspect. There is no suggestion that the defendant city failed to carry out its responsibilities as set out in the Manual. Accordingly, the plaintiff’s claim must be dismissed.

[33] As the decision in Fox is a considered decision in which the relevant case law was reviewed I feel constrained by Re Hansard Spruce Mills Ltd. [1954] D.L.R. 590, 13 W.W.R. (N.S.) 285 to follow it.

Justice Joyce finds that the snow and ice removal policy adopted by the City was a bone fide excercise of discretion based on budgetary constraints and availabilty of manpower and equipment and as such was not open to review by the Court even where that duty arose under statute.

The foregoing analysis is useful because it recognizes both the municipality’s statutory duty and its common law duty to maintain a sidewalk and applies the policy defence to these separate duties. In addition, it is a reminder that governmental authorities are subject to common law duties as well as statutory duties and that policy defences must be considered in light of both sets of duties.

Be Reasonable

Posted by Johannes Schenk on October 27th, 2005 — Posted in Employment Law, Human Rights Law, Labour Law

Be reasonable. No matter which side of the fence you are on the tempation to “stick” it to the other side is strong when you are in the heat of a dispute. For counsel, helping a client see their way through this phase of the litigation is an art unto itself. This is made somewhat easier if there is some form of tangible result that might come from “reasonable” behavior. Michael Fitzgibbon of Thoughts from a Management Lawyer, posts on reasonable settlement offers in the context of human rights complaints. The case, Losenno, that Mr. Fitzgibbon refers to, is a strong reminder of the benefit brought on to the “reasonable” party in a dispute.

Admissibility of Surreptitious Video Surveillance

Posted by Johannes Schenk on October 26th, 2005 — Posted in Employment Law, Human Rights Law, Labour Law

Your position at arbitration is only as good as the supporting evidence. Video evidence can be a compelling tool and the very qualities that make it compelling also make it invasive. This is particularly the case for surreptitious video evidence. As with other invasive evidence gathering methods, admissibility rules are relatively strict. These rules must be adhered to or investigative efforts are all for nought.

A recent BC arbitration, EBCO Metal Finishing Ltd., (“the company”), and International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Shopmens’ Local 712, (the “union”), [2004] B.C.C.A.A.A. No. 260, deals with the admissibility of surreptitious video evidence in the workplace. The case gives a thorough recitation of the law dealing with this type of evidence and outlines the test for admissibility.

Briefly, management had productivity concerns about two workers and the decision was made to secretly videotape their on-shift conduct. The tape showed that the workers were not working as they should and they were dismissed for time theft. At hearing management sought to rely on the tape and the union objected to its admissibility. The proceeding concerned itself largely with the admissibility of the taped evidence.

Arbitrator Blasina states the following in paragraph 20:

At present the only issue before me is the admissibility of surreptitious, workplace, video surveillance; and, in taking the decision to undertake such surveillance it is a fact that there were reasonable options available, which were not considered by management. This will be further discussed later in this award.

He found that management did not consider, or make use of, reasonable alternatives before resorting to videotaping the grievors and held the tape inadmissible on that basis.

In addition to common law privacy principles, Arbitrator Blasina relied on section 12(1)(c) and 13(2) of the British Columbia Personal Information Protection Act, S.B.C. 2003, c. 63 (“PIPA”) and stated that a reasonableness standard applies to the collection of information in the workplace.

Interestingly, the case of Richardson v. Davis Wire Industries Ltd., [1997] B.C.J. No. 937 (B.C.S.C.), was considered and rejected by Arbitrator Blasina. That case concerned a wrongful dismissal in which surreptitious video evidence was admitted. Madam Justice Kirkpatrick, in considering the Privacy Act then in force, stated that that Act merely provided a foundation for damages and did not make improperly obtained evidence inadmissible. Arbitrator Blasina disgreed with this position in the context of PIPA and stated that it would be a jurisdictional error to admit evidence contrary to PIPA.

In conclusion, video evidence obtained in a “reasonable” manner is an obviously powerful tool. It’s perhaps a healthy sign that as “powers of observation” grow stronger and more capable privacy concerns are receiving greater consideration. In any event, Ebco provides a current roadmap for evidentiary matters that touch upon privacy related concerns in an administrative law context. It will be a useful case for both those relying on and objecting to surreptitiously gathered evidence.

Teachers in Contempt: Fined $500,000

Posted by Johannes Schenk on October 21st, 2005 — Posted in Labour Law

The matter of the BC Public School Employers Assoc. v. BC Teachers Federation, 2005 BCSC 1490, was before the BC Supreme Court today for penalty determination. The BCTF was fined $500,000.00.

The case is an interesting read for the discussion on the difference between civil and criminal contempt and the outline of the factors used to determine the appropriate penalty for contempt of a Court order.

Secret Lobbying: No Cause of Action

Posted by Johannes Schenk on October 21st, 2005 — Posted in Labour Law

It’s safe to say that BC continues to make labour law headlines. The telus strike and the teacher’s walkout are two big ticket items but there are other low key noteworthy matters that merit attention. One such case is, Paramedical Professional Bargaining Assn v. Health Employers Assn.of British Columbia, 2005 BCCA 42, in which the dispute centers on the Health and Social Services Delivery Improvement Act, SBC 2002, c.2.

The Paramedics filed suit against the Health Employers Association of British Columbia (HEABC) and argued that either before or after bargaining their collective agreement, the HEABC, secretly and without notice to the health sector unions, lobbied the Government to enact the statute. The secret lobbying deprived the Paramedics of their negotiating rights, the right to strike, and of their own opportunity to lobby the government. The HEABC responded with a motion to strike the claim on the basis that it disclosed no cause of action.

Madam Justice Southin states:

[8] In my opinion these paragraphs disclose no action known to the common law. That being so, this statement of claim should be struck out under Rule 19(24)(a).

[9] What has caused the trouble here for the union is the Act of the Legislature of British Columbia, a statute duly enacted under the powers conferred upon the Legislature by s. 92 of the Constitution Act.

[10] I know of no authority whatever for the proposition that an action will lie against anyone for attempting to obtain and obtaining legislative intervention for some purpose of his own. Because no such action lies, the question of Weber does not truly arise. It may be, for all we know, that under the Labour Code, the Labour Relations Board would have some jurisdiction in its own mind to address the issues that arose here, because the law under the Code is different from the common law.

The case was dismissed but nevertheless represents a novel legal argument.