Where the Sidewalk Ends Parks, Roads, and Sidewalks Theyre All - PowerPoint PPT Presentation

Where the Sidewalk Ends… Parks, Roads, and Sidewalks – They’re All Connected Parks, Roads, and Sidewalks – They’re All Connected Presented by Aron M. Bookman and Caroline Alexander April 2018

TOPICS TO BE ADDRESSED 1. Policy/Operational Defences 2. Challenges to Policy Defences 3. Roads vs. Sidewalks vs. Trees 4. Take Aways…

GENESIS FOR THIS PRESENTATION

GENESIS FOR PRESENTATION When policies collide with reality…

POLICY DEFENCE DEFINED BY THE SCC IN THE WAKE OF TRAGEDY The general principles regarding the imposition of a duty of care apply to a government agency such as a municipality in the same way that they apply to an individual, except where there is an explicit statutory exemption or where there is a pure policy decision by the government agency. Just v. British Columbia [1989] 2 SCR 1228

JUST SUMMARIZED • Plaintiff badly injured and his daughter killed by a boulder falling on the Sea to Sky Highway on January 16, 1982. • BC Supreme Court Judge dismissed the case on the basis that the “nature and frequency” of inspections were matters of policy. • BC Court of Appeal upheld decision. • SCC reversed and ordered a new trial resulting in liability (8 years after incident).

POLICY Decisions concerning budgetary allotments for departments or government agencies are generally viewed as policy decisions. • Highway maintenance – Roads – Sidewalks – Signs • Inspection and identification of hazardous trees or rocks

BROWN V B.C. (MINISTER OF TRANSPORTATION AND HIGHWAYS) (1994 SCC) True policy decisions involve social, political and economic factors or constraints. Attempt to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of undertakings and of their actual performance.

OPERATIONS • The manner and quality of an inspection system is part of the operational aspect of a governmental activity. A governmental agency may be found liable if it was negligent in the way in which it carried out a policy.

BROWN CONTINUED The operational area covers the performance or carrying out of a policy. Operational decisions will usually be made on the basis of: • administrative direction; • expert or professional opinion; • technical standards; • general standards of reasonableness.

OPERATIONAL STANDARD OF CARE? The requisite standard of care applied to a governmental agency carrying out its responsibilities is assessed in light of all the surrounding circumstances including: • the nature and quantity of the risk, • budgetary restraints • availability of qualified personnel and equipment

BROWN SUMMARIZED • Plaintiff’s vehicle skidded off icy highway in November 1985. One of four accidents on that stretch of highway that morning. RCMP had requested a sand truck over one hour prior to accident. • Highways Department crews on “summer schedule” with changeover to take place the following week. • Result was that no one inspected the road that morning or was available to respond immediately. • Case dismissed.

CHALLENGES TO POLICY Policy decisions may be open to challenge on the basis that they were not made in the bona fide exercise of discretion. They may not be challenged on the ground that they are unreasonable.

IMPROPER POLICY In my view, inaction for no reason or inaction for an improper reason cannot be a policy decision taken in the bona fide exercise of discretion. Where the question whether the requisite action should be taken has not even been considered by the public authority, or at least has not been considered in good faith, it seems clear that for that very reason the authority has not acted with reasonable care. Wilson J. in City of Kamloops v. Nielsen , [1984] 2 S.C.R. 2 at p. 24.

POLICY OF NO INSPECTION OR A “REACTIVE POLICY” • A policy of no inspections is not necessarily unreasonable – Complaints based system – Reasonable if budgetary reasons prevent continuous/regular inspections – Important that it be in writing.

PLETT (GUARDIAN AD LITEM) V. ABBOTSFORD (CITY) • Written policy of no inspection • Court found reactive as opposed to proactive inspection policy is a true policy decision “a policy of non-inspection, or a policy of minimal or cursory inspection may be a true policy decision if it is based on financial or economic constraints. However, the manner and quality of an inspection scheme, as distinguished from the frequency of inspections, is an operational decision”

PLETT SUMMARIZED • Plaintiff’s vehicle left the road, struck a utility pole and came to rest in a ditch due to water on municipal road. • Road prone to seasonal flooding. • Plaintiff claimed Abbotsford failed to maintain the road and failed to warn users of the unusual risk of harm. • Abbotsford defended the case based on its policy.

PLETT SUMMARIZED

ESTABLISHING BONA FIDE POLICY • 2100 kilometers of road in Abbotsford. • City budgets put into evidence and broken down by: – Total budget. – Engineering total budget – Engineering budget for “dyking, drainage and irrigation”. • City Manager of Roads and Sanitation testified to budgetary reasons for policy and staffing and equipment limitations.

CHIEF JUSTICE UPHOLDS POLICY [53] I conclude that the City’s system to monitor water levels on the Matsqui Prairie and its system to monitor the condition of its roads and signage were the result of reasonable policy decisions by the City. … [91] I find that the City’s decisions with respect to its storm management system were policy decisions, made in attempts to approach the ARDSA criteria.

STANDARD OF CARE = REASONABLENESS • “When the contested government action is operational the applicable standard of care is reasonableness” Plett (Guardian ad litem) v. Abbotsford (City)

PLETT REVISITED • “The City met the requisite standard of care with respect to road design, maintenance, repair, and inspection; responding to weather conditions and rising water; posting reasonable speed limits; warning road users of hazardous road conditions; limiting the flow of traffic; and storm water management…”

WRITTEN VS UNWRITTEN POLICIES Binette v. Salmon Arm , 2017 BCSC 302 • Trip and fall on sidewalk where municipal traffic sign removed but sign base protruding – City had noticed a sign was down – retrieved the downed sign but didn’t know where it came from – Sign stored by City until snow melt • Unwritten complaints based policy for inspecting sidewalks accepted

WHAT IS AN “UNWRITTEN POLICY”? • A practice which the public body seeks to elevate to being a “policy” immune from critique by the Court. • Open to critique as: – Ill defined – Not bona fide • Leads to flexibility in assessing operational steps resulting from the policy.

BINETTE CONT’D • The policy created by the City required it to use its “best efforts” having regard to the City’s resource constraints and the hazardous nature of the sign to remediate the problem. • The City knew that the Sign was missing and would or should have known that it had been sheared off from the base located somewhere on a sidewalk near a crosswalk. • The City should have moved the matter of locating and remediating the sign to the priority of immediacy as soon as the snow had melted. • At a minimum, “best efforts” must include “some efforts”. • The Sign remained in storage until after the City was notified of the Fall, despite the snow having been melted from the Sidewalk.

ROAD VS SIDEWALK – CASE EXAMPLE #1 Plaintiff steps off a sidewalk into a depression on roadway/curb  fractured ankle • City had formal risk management policy re: inspection of roads and sidewalks – Policy 1 – Road Inspection – complaints based • Repairs to potholes conducted “on request” • no routine inspection – Policy 2 – Sidewalk/Curb Inspection – scheduled inspection • formally inspected every other year • elevation change greater than 20 mm = unsafe

SIDEWALK VS ROAD • Issue 1: curb or road?

SIDEWALK VS. ROAD • Further complication – knowledge of the issue – City had a photograph within its possession that depicted the hazard – Hazard not noticed as purpose of inspection was for installation of a Canada Post mailbox – The exact mailbox the plaintiff was accessing at the time of the fall!

CANADA POST APPLICATION FOR MAILBOX After Canada Post submitted mailbox application municipal engineering technician inspected site – Same individual who conducted routine risk management inspections

RISK – DESPITE POLICY/OPERATIONAL DEFENCE • City’s policies = reasonable • Policies followed correctly – inspection reports completed and saved • Depression there to be seen • Depression fixed post-fall as it clearly fell within City’s threshold of “unsafe”

TREES VS ROAD – CASE EXAMPLE #2 • Plaintiff’s vehicle struck by falling tree while driving down busy highway. Tree located on municipal land • Issue: tree dead/dying for years prior to falling • Policy: practice of Municipal arborist was no regular inspection of boulevard trees but respond to any observations or complaints. • Plaintiff: Alleged municipalities have a duty to inspect boulevard trees.