Where the Sidewalk Ends…€¦ · Where the Sidewalk Ends… Presented by Aron M. Bookman and...

Where the Sidewalk Ends…

Presented by Aron M. Bookman and Caroline AlexanderApril 2018

Parks, Roads, and Sidewalks – They’re All Connected Parks, Roads, and Sidewalks – They’re All Connected

TOPICS TO BE ADDRESSED

1. Policy/Operational Defences2. Challenges to Policy Defences3. Roads vs. Sidewalks vs. Trees4. 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.

BROOKS CONT’D

• Similar to Plett, City gathered evidence:– Used mapping technology to estimated 32,400

trees standing 3 meters or taller in City’s road dedications (567 kilometers of road).

– City’s budget and allocations to public works for road maintenance and to employ one full-time arborist.

– Estimated the cost of employing full time arborists to implement a tree inspection regime.

CHALLENGES WITH DEFENCE

• Issue is safety of motorists, i.e., did the City turn its mind to the potential risk at issue? What if there was a sidewalk in between?

• Other municipalities have written inspection regimes or non inspection policies for roads.

• City aspired to an inspection regime but had not yet designed or implemented same.

• Potential risk of harm is very great (Just v. BC) whereby the bona fides of the policy could be called into question.

BACK TO THE BEGINNING

• Tree in Aron’s local park…

RECREATIONAL TRAILS SUBJECT TO LOWER STANDARD OF CARE

(3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

(a) create a danger with intent to do harm to the person or damage to the person's property, or(b) act with reckless disregard to the safety of the person or the integrity of the person's property.

RECKLESS DISREGARD DEFINED

“…the concept includes an objective standard; namely, what he or she (the occupier) should recognize as something likely to cause damage. What is being referenced is something beyond what can be assumed by all of us, as ordinary people know, something unusual, something inherently harmful or dangerous. Whatever this danger it is clearly contextual. It may not be obvious. It may be hidden or concealed. It may contain an element of surprise for the user such that response times are diminished, if not eliminated. It may be that the user cannot extricate himself or herself from the situation…it is a “trap”.The failure of the occupier to address a known danger of this magnitude would constitute “reckless disregard”. Herbert (ONT)

NO INSPECTION POLICY EXAMPLE

COUNCIL POLICY SUBJECT: PUBLIC WORKS INSPECTION POLICY DATE: NOVEMBER 5, 2001 REFERENCE: 01/479 It is the policy of the Municipality that no formal periodic inspections be carried out of municipal highways, sidewalks, boulevards, street lights, traffic signs, sewers, storm drains, water mains and services, parks, trails or any other properties under the Municipality’s jurisdiction. That repairs to defects or hazards be carried out in response to complaints or reports from the public or municipal staff. This policy has been adopted by Council after consideration, on the one hand, the cost of assigning staff to periodic inspections of Parks and Public Works infrastructure and, on the other, the interest of protecting the public from hazardous conditions.

CHALLENGES

• Tree was likely dead for a number of years.• Tree not particularly large.• Tree was adjacent to a walking trail.• The trail was recently upgraded by municipal

staff over a number of days.• Risk of serious injury and death.• Municipal policies vary.• Reckless disregard?

COMMON POLICY—SEE NORTH VANCOUVER

4.2 Natural Parkland and Urban Parkland: Trees adjacent to mulch trails, engineered full serviced trails, gravel connector trails and District sanctioned areas of congregation (e.g. Barbeque pits, picnic sites and viewpoints) will be visually inspected upon request. Hazards will be mitigated as per Section 1.0 and trail blockages removed. User frequency of these parklands will be considered when assessing the trees. Habitat enhancement through the creation of wildlife trees will be done wherever possible. Perimeters of parkland adjacent to other property will be inspected for tree concerns upon request and hazards mitigated as per Section 1.0.

WHAT IF YOU PLAN TO INSPECT?

1. Must define what will be inspected and where.

2. Must define the frequency of the inspections.3. Must define the parameters of inspections

(e.g. sidewalk lip height).4. Must define who will do the inspections and

the level of training for same.5. Must document inspections.

HERBERT V. BRANTFORD (2012)

“The City decided that inspections every 30 days would be appropriate to deal with the hazard and set up a system for inspection and maintenance. The City should have been extra vigilant about sticking to this schedule in this area of the Trail, which required particular attention….describe him lying a few feet off the trail in either a pile of rocks or near a large jagged rock or boulder. Other evidence is the photos taken 17 days after the accident, which show sprawling or unravelling pavement that was not caught in the August inspection or in the October inspection…. it is hard to understand how it went unnoticed and unrepaired throughout the summer months.”

RECKLESS LACK OF INSPECTION

“The City knew that, if it was possible, there should be a clear/recovery zone on either side of the trail. That zone was installed upstream. Downstream, it was physically impossible given the confines of the space available, dictated on the one hand by the presence of a railway retaining wall and on the other by a shoreline that required stabilization and could not be encroached upon…One would think that this inspection system would be key in an area that is inherently dangerous as it does not have a clear/recovery zone…For all of the above, it can be said that the failure of the inspection system to pick up on and address the spalling in such a dangerous location given the absence of a free/recovery zone was a “reckless disregard”.

PARK-SIDEWALK-ROAD

TAKE AWAYS

1. A municipality is not required to inspect its roads, sidewalks, and/or parks

2. Purely reactive policies are easier defend if written

3. Operational issues can arise where department responsibilities overlap

4. Record keeping re: inspections is vital

DISCUSSION/QUESTIONS

Aron M. Bookman – ambookman@carlaw.caCaroline G. Alexander – cgalexander@carlaw.ca