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:

Issues:

[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.

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