2008 BCSC 861 Talarico v. Town of Fort Nelson

Before: The Honourable Madam Justice Lynn Smith

Reasons for Judgment

Counsel for Plaintiff	P.S. Boles
Counsel for Defendants	L.E.W. Barrett
Date and Place of Hearing:	April 28, 29, 30, 2008
	Prince George, B.C.

INTRODUCTION

[1] Bonnie Talarico was injured on Christmas Eve, 2003, when she slipped and fell on a patch of ice under fresh snow on the side of the road in the Town of Fort Nelson. She seeks damages for her injuries from the two defendants, Northern Rockies Regional District and the Town of Fort Nelson (Fort Nelson).

[2] Fort Nelson agrees that it had jurisdiction over the road where the accident occurred but denies liability for the plaintiff’s losses.

[3] Northern Rockies Regional District says it had no jurisdiction over the road in question. No evidence was adduced showing any involvement of that defendant in the ownership or control of the road; accordingly, the action will be dismissed against it.

[4] Fort Nelson did not adduce evidence in support of its pleading that the plaintiff was contributorily negligent, and it did not rely upon its defence pleaded under s. 286 of the Local Government Act, R.S.B.C. 1996, c. 323. I will not address those matters in these reasons.

EVIDENCE AND FINDINGS OF FACT

[5] Three witnesses gave evidence at the trial: the plaintiff Bonnie Talarico, her husband Terry Talarico, and Ralph Dennis Thomson, who is the Public Works Foreman for Fort Nelson. There was no significant dispute as to the basic facts, which I find to be as follows.

The Accident

[6] The plaintiff is a 48 year old bank employee, the mother of two adult children, and has lived in Fort Nelson for 17 years. On December 24, 2003 she slipped and fell on a patch of ice under fresh snow. She broke her ankle and required surgery in Grande Prairie, Alberta a few days later. She underwent further surgery to remove “hardware” from her ankle in December 2006.

[7] The accident occurred on 41^st Street in Fort Nelson. It is a quiet residential street near the outskirts of town.

[8] The plaintiff had gone to visit her sister on 41^st Street on Christmas Eve in the late afternoon, parking on the west side of the street under a street lamp. There is no sidewalk on that side of the street.

[9] It had been warm in the previous few days and the streets were relatively clear of snow. However, the temperature fell on December 24 and it had been snowing that day. Most of the roads in the area were snow-covered and had not yet been ploughed or sanded.

[10] It is common for pedestrians to walk on the road in Fort Nelson since some streets do not have sidewalks, a number of the sidewalks are not cleared of snow, and sometimes cars park across the sidewalk.

[11] When Ms. Talarico left her sister’s house she headed toward her car. She was wearing footwear with a good grip and was paying proper attention. However, she slipped with her left foot just at the roadway, fell and broke her ankle. She screamed with pain and was heard by her husband, who was nearby. Ms. Talarico saw smooth ice all around where she had fallen. She testified that when her sister and her niece’s fiancé came out to help pick her up they had trouble with their footing because of the ice. However, they finally got her in the truck and her husband, Terry Talarico, took her to the Fort Nelson Hospital.

[12] Mr. Talarico later went back to pick up his wife’s vehicle and saw that the road was icy, appearing to have frozen puddles with snow on top. The following morning at around 9:00 a.m. he returned again to 41^st Street. He said he saw what appeared to be ice from a water break about 200 feet in length and from three to six feet wide on the west side of the road. He did not call the Town or notify anyone of the presence of this ice at any time. He explained that he was fully occupied with taking care of his wife, their family, Christmas dinner, and then driving his wife to Grande Prairie for surgery.

[13] Mr. Thomson, who was called by the defendants, testified that, as the Town of Fort Nelson Public Works Foreman, he received a call one evening in early January 2004 from a man (whose name he does not recall) regarding a lady who had fallen and slipped on ice from a water break on Christmas Eve. He went to 41^st Street and met the caller there. Although initially Mr. Thomson could not see any ice, when the man took him over to the side of the road and Mr. Thomson kicked away some of the snow, he found a small patch of ice on the shoulder. He followed the ice patch to a driveway nearby, then up the driveway to a mobile home. He knocked at the door of the mobile home and spoke to a woman who said that they had had a water break under the trailer but had had it fixed. Mr. Thomson testified that it appeared to him that a broken water line from the trailer had caused water to go down the driveway onto the road. (I note that what Mr. Thomson was told about the cause of the ice patch was hearsay.) The ice he observed was smooth and clear, and stretched for 100 to 120 feet.

[14] Mr. Thomson said that he did not consider the ice to be a safety factor at that point because there was a snowpack on it. He said that if it had been exposed he would have got a crew in and scraped and sanded.

[15] Mr. Thomson produced records showing that Fort Nelson crew members worked on snow removal on December 22, 23 and 24, 2003.

[16] Mr. Thomson had received no previous notice of ice in the location where the plaintiff fell.

[17] In summary, I find that the plaintiff fell on ice on the road probably caused by water escaping from a mobile home on 41^st Street. Fresh snow had fallen that day and covered the ice, making walking quite hazardous in that area. I find that Fort Nelson had no knowledge of the existence of the patch of ice, which was probably over 100 feet long, until some time after the accident occurred, when Mr. Thomson received the call he said he received in early January 2004.

The Town’s Policies and Procedures

[18] I turn to the evidence regarding the Town’s policies and procedures with respect to snow and ice removal.

[19] Mr. Thomson has been employed by Fort Nelson for 20 years and by December 2003 had been the Public Works Foreman for 10 years. His evidence regarding Fort Nelson’s snow removal procedures was uncontradicted, and I accept it. Mr. Thomson’s duties were to assign work to the Public Works crew, to inspect and supervise work and occasionally to pitch in and do some work himself.

[20] Mr. Thomson produced a document setting out Fort Nelson’s annual budget for roads and grounds for the years 2000 to 2004. He also produced a document called “Town of Fort Nelson Snow Removal Procedures” which was essentially a handout for citizens. He did not know specifically when the document was created but he testified that it was the policy and it had been in place for as long as he had been the Public Works Foreman.

[21] The document describing the Town’s snow removal procedures includes the following:

TOWN OF FORT NELSON

SNOW REMOVAL PROCEDURES

What Kind of Equipment Does the Town Use for Snow Removal?

The Town’s snow removal equipment consists of:

1 - grader, equipped with a wing
2 - tandem trucks, each equipped with sanders and front plough
1 - tractor backhoe, equipped with a front-end loader
1 - industrial tractor, equipped with a blade for sidewalk snow removal

The Town equipment is augmented with contract equipment as required. Snow removal at Town Square.

When Does Snow Clearing Get Started & When Will My Street Be Done?

1. When the snow starts flying, one tandem truck is dispatched to plough the snow off the streets and apply a sand/calcium chloride mixture - to maintain safe driving conditions.

2. If one truck cannot keep up, the second tandem truck is dispatched and if necessary, so is the grader.

3. Snow removal is done on a PRIORITY basis - SEE the following map.

FIRST PRIORITY is given to streets serving as major access routes to the hospital, ambulance and schools, and, to sidewalks in residential areas that have been identified in the “Safest Route to School” program. The sidewalks are cleared by Public Works crew members during daytime hours.

What Else Should I Know?

1. Urban traffic speeds and our climate doesn’t allow removal of compact snow or ice to bare asphalt. So, the grader is used to remove this on a regular basis and compact snow depths on our streets seldom exceed 2 inches.

2. When the grader IS used on snow removal operations, the front-end loader is also used to clear the windrow left in front of drive ways by the grader.

3. The front-end loader DOES NOT clear snow windrows left by the tandem trucks - it couldn’t possibly keep up!

4. Secondary Residential Sidewalks WILL BE cleared with the Holder Snow Blower.

[22] A map of Fort Nelson called “The Fort Nelson Snow Removal Schedule” shows Priority No. 1, Priority No. 2 and Priority No. 3 roadways. The street where the accident occurred, 41^st Street, is shown as a Priority No. 2 road.

[23] The Town’s practice is to send out trucks with ploughs or the grader (if the snow is heavy) when it first starts snowing. The crews start with the Priority No. 1 roads and move to the Priority No. 2 roads only if they have dealt with Priority No. 1 roads and the snow is not continuing to fall. That practice was in effect in December 2003.

[24] Mr. Thomson testified that he does not recall the weather on December 24, 2003. He said that if it had started to snow and continued to snow throughout the day they would have stayed on the Priority No. 1 roads and would not have moved to the No. 2 ones. If the snow had continued into the evening, the Priority No. 2 roads would not have been cleared. I find that 41^st Street was not cleared on December 24.

[25] Mr. Thomson testified that the purpose of ploughing roads is to enhance the safety of travel with vehicles, by opening up the lanes of travel. Only when the grader is used do the sides of the road get cleared, and the grader is not deployed until there are at least two inches of snowpack on the streets.

[26] The Town does not inspect for patches of ice. The Town has a 24-hour answering service and the policy is to check immediately if there is a complaint from a citizen about a patch of ice, and then to deal with it through applying sand, scraping it, or in some other appropriate manner. In addition, Fort Nelson crew members are instructed to “phone it in” if they see a patch of ice while out on the streets. There is no evidence of any call from the public or a crew member regarding the patch of ice on 41^st Street prior to the call Mr. Thomson received in early January 2004.

[27] With respect to water leaks from private residences, the Town’s practice is to go and speak to the homeowner if such a leak is observed on private property, and to work on the road if a water leak problem is observed there. Mr. Thomson said that water or sewer leaks are high priority and they act right away. Mr. Thomson agreed that Fort Nelson did not have a system of inspection for water main breaks or for water leaks from private premises. He said that with respect to water main breaks they have an alarm system.

[28] The Fort Nelson budget for snow removal and ice control in 2003 (set by the Director of Public Works) was $238,600 and that amount was not fully spent by the end of the year. Mr. Thomson said, however, that when safety is at stake they do not let the budget drive the decisions and if snow removal is needed they keep doing it.

[29] Mr. Thomson agreed that pipes can burst in the winter and that his department is concerned about water going onto the streets because if it freezes, it can create a hazard. He agreed that the temperatures had been warm for a few days prior to December 24 and that ice might have started to thaw. He disagreed that thawing and refreezing might have caused the ice which he saw on 41^st Street.

[30] Mr. Thomson agreed that it would not have taken a lot to fix the ice patch on 41^st Street, and that it would have been possible to put up hazard signs or use some treated sand.

[31] Mr. Thomson testified that sidewalks are cleaned in the same priority as are roads, including the sidewalk on the east side of 41^st Street.

POSITIONS OF THE PARTIES

[32] The plaintiff’s position is that the Town owed a duty of care to the plaintiff either under s. 3 of the Occupiers Liability Act, R.S.B.C. 1996, c. 337, or under the common law. Ms. Boles for the plaintiff submitted that there was no policy decision disclosed in the evidence here. At most, she argued, there was evidence as to a set of practices under which Mr. Thomson made operational decisions. She submitted that the question is whether the Town’s system was reasonable in all the circumstances and if so whether it was in operation on the day in question. Ms. Boles submitted that there was evidence that the defendant Fort Nelson knew that there was a risk that water leaks would develop, creating ice and a hazard to citizens who might walk on the road, and that a system of inspection for the ice would not have been inordinately expensive or difficult, and would have prevented the accident here.

[33] Ms. Boles also submitted that the plaintiff should recover in nuisance. Ms. Boles argued that when the water which escaped from the private residence froze and created a layer of smooth ice under a fresh snowfall, it created a nuisance that Fort Nelson knew or ought to have known existed.

[34] Fort Nelson’s position is that because it was exempted by s. 8 of the Occupiers Liability Act it owed no duty of care to the plaintiff under that legislation and that s. 288 of the Local Government Act immunizes the Town from actions for nuisance in these circumstances.

[35] Ms. Barrett for the defendants submitted in the alternative that the claim in nuisance must fail because the Town did not own the property, create the hazard or have any knowledge of the ice that formed on 41^st Street prior to January 2004.

[36] With respect to the negligence claimed, Ms. Barrett submitted that the Town had made policy decisions as to its standard procedures, dictated by the availability of manpower, equipment and resources. She submitted that the policy of not inspecting for ice on roadways is bona fide and rational. Alternatively, Ms. Barrett submitted that the defendant Town acted reasonably at all times in following its policies.

ISSUES

[37] The issues I must decide are as follows:

1) Was the plaintiff injured on property owned and controlled by the Town of Fort Nelson?

2) Is the Town liable in nuisance?

a) Does s. 288(b) of the Local Government Act provide immunity to the Town?

b) Did the Town create a dangerous condition or fail to take reasonable steps to abate a dangerous condition when it knew or ought to have known of its existence?

3) Was the place where the fall occurred a public road such that s. 8(2)(b) of the Occupiers Liability Act applies, excluding the Town from owing a duty of care under s. 3(1) of the Occupiers Liability Act?

4) Is the Town liable in negligence?

a) Did the Town owe a duty of care to the plaintiff?

b) If so, did it take reasonable care in the circumstances?

c) If not, what losses of the plaintiff were caused by the Town’s failure to take reasonable care and to what damages is the plaintiff entitled?

ANALYSIS

(1) Was the plaintiff injured on property owned or controlled by the Town of Fort Nelson?

[38] The evidence clearly establishes that the plaintiff was injured when she slipped and fell on ice on a road within Fort Nelson. It was not disputed that Fort Nelson owns that property or controls its use.

(2) Is the Town liable in nuisance?

[39] Section 288(b) of the Local Government Act provides:

288 A municipality, council, regional district, board or improvement district, or a greater board, is not liable in any action based on nuisance or on the rule in the Rylands v. Fletcher case if the damages arise, directly or indirectly, out of the breakdown or malfunction of

…

(b) a water or drainage facility or system …

[40] I have found that the probable origin of the water which froze and created the hazardous ice was on private property. However, the evidence does not show on a balance of probabilities that the water resulted from the “breakdown or malfunction” of a “water or drainage facility or system”. Mr. Talarico and Mr. Thomson both observed a large patch of ice, and Mr. Thomson followed it along to a trailer. The evidence as to what the person in the trailer told him was hearsay and inadmissible to prove that the source of the ice was a water break. There was no other evidence as to the source of the water, aside from Mr. Talarico and Mr. Thomson both saying that the ice appeared to have resulted from a water break. There are many possible causes of leaking water. The evidence does not establish on a balance of probabilities that the cause of the patch of ice on 41^st Street was one that would fall within the meaning of s. 288(b) of the Local Government Act.

[41] I find that s. 288(b) of the Local Government Act does not provide immunity to the Town.

[42] I must then address the question whether the Town is liable in nuisance. The definition of nuisance in Dugdale, ed., Clerk v. Lindsell on Torts, 18^th ed. (London: Sweet & Maxwell, 2000) at 974 is:

Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, or other right used or enjoyed in connection with land, when it is a private nuisance.

[43] Allen Linden and Bruce Feldthusen, Canadian Tort Law, 8^th ed. (Markham, Ont.: LexisNexis, 2008) describe nuisance in this way at 559:

Nuisance is a field of liability. It describes a type of harm that is suffered, rather than a kind of conduct that is forbidden. In general, a nuisance is an unreasonable interference with the use and enjoyment of land by its occupier or with the use and enjoyment of a public right to use and enjoy public rights of way. For the most part, whether the intrusion resulted from intentional, negligent or non-faulty conduct is of no consequence, as long as the harm can be categorized as a nuisance. …

[44] The test for liability in nuisance approved by the Court of Appeal for British Columbia in Ross v. Wall (1980), 23 B.C.L.R. 294 (C.A.), referring to Sedleigh-Denfield v. O'Callaghan, [1940] AC 880 (U.K.H.L.), is whether the defendant created a dangerous condition or failed to take reasonable steps to abate a dangerous condition when the defendant knew or ought to have known of its existence. In Sedleigh-Denfield, the owner of property was held responsible for damages caused by water overflowing from a pipe laid by a trespasser on that property.

[45] Recently, in Railtrack plc v. Mayor & Burgesses of London Borough of Wandsworth, [2001] EWCA Civ 1236, the England and Wales Court of Appeal (Civil Division) considered a claim that the owner of a railway bridge was responsible for a public nuisance created by pigeon droppings on the sidewalk under the bridge. The court referred with approval to an academic article by Professor Goodhart on the subject of nuisance, at para. 9:

In an important article in 4 Cambridge Law Journal in 1930 Professor A.L. Goodhart considered liability for things naturally on the land. He therefore looked at both public and private nuisance, and at page 30 he said —

“The correct principle seems to be that an occupier of land is liable for a nuisance of which he knows, or ought to know, whether that nuisance is caused by himself, his predecessor in title, a third person or by nature. Whether a natural condition is or is not a nuisance is, of course, a question of fact. Is the injury caused by the natural condition more than a reasonable neighbour can be asked to bear under the rule of live and let live? In other words, the ordinary rules of nuisance apply in the case of natural conditions. As we must all bear with our neighbour’s piano-playing so we must also submit to his thistle down. This does not mean that we have no remedy if he introduces a large orchestra, or if he allows his tree, even of natural growth, to remain in a dangerous condition along the highway.”

[46] Did the defendant Fort Nelson know that water had escaped from a homeowner’s property, causing ice on the side of 41^st Street? There was no evidence that anyone brought the patch of ice to the Town’s attention until the first week in January 2004. The plaintiff has not established that the Town knew of the large patch of ice on 41^st Street prior to the time the ice caused her to slip and fall.

[47] Has the plaintiff established that Fort Nelson ought to have known of the ice? There is no evidence as to when the patch of ice came into existence. The Fort Nelson crews responsible for snow clearance did not have responsibility to inspect for ice, but they were expected to alert Mr. Thomson if they came across ice that would cause a hazard. As of December 24 at least, the ice was covered with snow and was on a Priority No. 2 street, which the crews were not likely to reach that day since it was still snowing. I do not find that the plaintiff has shown that the existence of the patch of ice ought to have been known to Fort Nelson.

[48] As the plaintiff has not proved that the Town had or should have had the requisite knowledge, I find that the plaintiff has failed to prove her claim in nuisance against Fort Nelson.

(3) Does the Occupiers Liability Act create a duty of care?

[49] The Occupiers Liability Act in s. 3(1) creates a duty of care on the occupier of premises:

3. (1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

The Crown as an occupier of premises is in general subject to the legislation, but s. 8 of the Occupiers Liability Act provides an exception in the case of public roads:

8. (1) Except as otherwise provided in subsection (2), the Crown and its agencies are bound by this Act.

(2) Despite subsection (1), this Act does not apply to the government or to the Crown in right of Canada or to a municipality if the government, the Crown in right of Canada or the municipality is the occupier of

…

(b) a public road,

…

[50] Ms. Boles for the plaintiff submitted that the location where Ms. Talarico was injured in her fall was being used for walking and was de facto a sidewalk. There was no sidewalk on that side of the road, and Ms. Boles pointed to the evidence that that part of the road was commonly used for walking in the winter in Fort Nelson, and to the absence of a definition of “road” in the Occupiers Liability Act.

[51] I am not persuaded that the location where the accident occurred was other than a public road. It was used for vehicular traffic and for parking. The fact there was no sidewalk on the west side of 41^st Street and that people sometimes walked there does not make the public road a sidewalk.

[52] I find that s. 3(1) of the Occupiers Liability Act does not create a duty of care on Fort Nelson in this case because the area where the accident occurred falls within the exception provided under s. 8(2)(b).

(4) Is the Town liable in negligence?

(a) Inter-relationship between Occupiers Liability Act and common law duty of care

[53] I have concluded, as set out above, that s. 8(2)(b) of the Occupiers Liability Act excluded the defendant Town from the duty of care otherwise created by s. 3(1) of that Act because the accident occurred on a public road.

[54] The inter-relationship between the law of negligence and the Occupiers Liability Act with respect to highways was discussed in Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420. There, at 439-40, Cory J. addressed an argument that s. 8 of the Occupiers Liability Act and s. 3(2)(f) of the Crown Proceeding Act, R.S.B.C. 1979, c. 86, exempted the Department of Highways from any liability. Cory J. wrote at 440:

Further, the Occupiers Liability Act simply has no place in a consideration of the obligations of the Department of Highways for the repair and maintenance of its highways. The enactment of occupiers' liability acts in common law provinces resulted from two legitimate concerns of the legislator. The first was the desire to do away with the medieval morass of "pigeon holing" and labelling that governed cases prior to the passage of the acts. The other was a concern for the increasing risk of liability for occupiers of property arising from accidents occasioned by snowmobilers running into wire fences or wire gates on farm and rural properties. I cannot believe that the Occupiers Liability Act of British Columbia was passed with a view to exempting the Department of Highways from liability for its negligent acts, whether they be acts of misfeasance or nonfeasance. To achieve that result a clear exemption would have to be found in the Highway Act. There is no such exemption here.

[55] It is clear from those comments that s. 8(2)(b) does not exempt Fort Nelson from liability for negligence with respect to repair and maintenance of its roads if it has a duty of care at common law.

(b) General principles governing duty of care

[56] Did Fort Nelson owe a duty of care to Ms. Talarico?

[57] The Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, discussed comprehensively the circumstances in which there will be sufficient proximity to found a duty of care, stating at para. 36:

What then are the categories in which proximity has been recognized? First, of course, is the situation where the defendant's act foreseeably causes physical harm to the plaintiff or the plaintiff's property. This has been extended to nervous shock (see, for example, Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907 (H.L.)). Yet other categories are liability for negligent misstatement: Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), and misfeasance in public office. A duty to warn of the risk of danger has been recognized: Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189. Again, a municipality has been held to owe a duty to prospective purchasers of real estate to inspect housing developments without negligence: Anns, supra; Kamloops, supra. Similarly, governmental authorities who have undertaken a policy of road maintenance have been held to owe a duty of care to execute the maintenance in a non-negligent manner: Just v. British Columbia, [1989] 2 S.C.R. 1228, Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445, etc. Relational economic loss (related to a contract's performance) may give rise to a tort duty of care in certain situations, as where the claimant has a possessory or proprietary interest in the property, the general average cases, and cases where the relationship between the claimant and the property owner constitutes a joint venture: Norsk, supra; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210. When a case falls within one of these situations or an analogous one and reasonable foreseeability is established, a prima facie duty of care may be posited.

[emphasis added]

[58] The Supreme Court of Canada held in Just v. British Columbia, [1989] 2 S.C.R. 1228, and Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445, that once a government has made a policy decision to undertake some activity, such as road maintenance, it may have a duty of care to carry out the activity in a non-negligent manner. However, absent a policy decision to undertake an activity, the necessary proximity to found a duty of care may not exist, and policy decisions themselves are exempt from tortious claims.

[59] Further elaboration upon these principles is found in Brown v. British Columbia (Minister of Transportation and Highways).

[60] In Brown, the plaintiff sued for injuries suffered when his truck hit black ice on the highway. The issue was whether the provincial Department of Highways was negligent in its maintenance of that highway.

[61] Cory J. for the majority first reviewed the general principles set out in Just v. British Columbia. There, the court had distinguished between policy and operational decisions, drawing that line in order to distinguish between those areas in which there should be Crown immunity to govern and make true policy decisions without being subject to tort liability as a result of those decisions, from those areas in which governments should bear responsibility to implement their decisions in a non-negligent way. The Supreme Court of Canada in Just stated at pp. 1240-41:

True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort.

[62] While the distinction between policy and operational factors is not easy to formulate, the Supreme Court of Canada approved of the explanation of the distinction given by Mason J., speaking for himself and one other member of the Australian High Court, in Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 (Aust. H.C.), that “the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints” (at 1242).

[63] In Brown at 435, Cory J. commented on whether it is necessary to determine whether a policy was bona fide and reasonable or rational, stating that generally such consideration will not be necessary. However, he said, in rare cases government decisions may be attacked where a policy decision was made in bad faith or in circumstances where it is so patently unreasonable that it exceeds governmental discretion. The court referred to the statement in Just at 1243:

Thus a decision either not to inspect at all or to reduce the number of inspections may be an unassailable policy decision. This is so provided it constitutes a reasonable exercise of bona fide discretion based, for example, upon the availability of funds.

[64] Posing the question before it as whether a duty of care is owed by the Department of Highways to those who use the provincial roads, the court again referred to Just for the proposition that a duty of care is owed by the province to those who use its highways and that duty of care would extend ordinarily to reasonable maintenance of those roads. At 439 in Brown the court said that the duty to maintain would extend to the prevention of injury to users of the road by icy conditions. However, the court added:

… the Department is only responsible for taking reasonable steps to prevent injury. Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented. Any attempt to do so would be prohibitively expensive. It can be expected that a Department of Highways will develop policies to cope with the hazards of ice.

[65] Addressing whether the decision of the Department of Highways to maintain a particular schedule was one of policy or of operations, the court commented at 441:

True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints.

The operational area is concerned with the practical implementation of the formulated policies, it mainly 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 or general standards of reasonableness.

[66] The court concluded in Brown that the decision to maintain a summer schedule was a policy decision and could not be reviewed on a private law standard of reasonableness.

[67] Where a government has made a policy decision to undertake an activity, choices made in carrying out that activity may also qualify as policy decisions that are shielded from liability. In Gobin (Guardian ad litem of) v. British Columbia, 2002 BCCA 373, 2 B.C.L.R. (4^th) 323, Braidwood J.A., writing for the majority, noted at paras. 11-13 and 52:

It is clear that a true policy decision may shield the government from liability. In the decision of Just v. R. in Right of British Columbia (1989), 64 D.L.R. (4th) 689 at p. 705, the following appears:

. . . True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political, or economic factors.

At the same time, however, “complete Crown immunity should not be restored by having every government decision designated as one of policy” (Just, supra, at p. 704). Courts must weigh the particular circumstances of any given case in order to distinguish between policy and operation.

The analysis does not end here, however. Even where contested decisions are clearly ones of policy, the operational implementation of a policy decision may still leave government susceptible to a tort claim, as the matter essentially “reverts” to an operational one. Courts may therefore be required to assess whether policy matters under review are manifestations of the operational implementation of a policy choice. Where, ultimately, the contested decision is operational, the standard tort analysis applies, and the requisite standard of care is one of reasonableness. Where, in comparison, the decision at issue is one of policy, liability may be imposed only for decisions that are made in bad faith or that are so irrational or unreasonable that they cannot be said to constitute a proper exercise of discretion: Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2.

…

It has been confirmed in prior cases that “lower level” choices may qualify as policy decisions. In Just, the Court held that a “lower level” policy decision to spot check manufactured items rather than check each item individually (a choice based on the lack of both trained personnel and funds) could very well qualify as a policy decision. Cory J. held (at p. 707) as follows:

Thus, a true policy decision may be made at a lower level provided that the government agency establishes that it was a reasonable decision in light of the surrounding circumstances.

. . . . .

In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that a duty of care is owed by the government agency and no exemption by way of statute or policy decision-making is found to exist, a traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered.

[emphasis in original]

[68] From Gobin it follows that where the government has made a policy decision to undertake an activity, and a further “lower level” decision made in respect of that activity is said to have caused damage to a person, the government may still escape liability if the lower level decision was a policy decision. Gobin also says that the court’s focus should be on the “contested decision”, that is, on the decision that is causally linked to the plaintiff’s injury.

[69] Counsel for the parties brought a number of slip and fall cases to my attention. Counsel for the plaintiff referred to Cullinane v. Prince George (City), 2002 BCCA 523, 6 B.C.L.R. (4^th) 325, and Cullinane v. Prince George (City), 2000 BCSC 1089, Potozny v. Burnaby (City), 2001 BCSC 837, Mainardi v. Shannon, 2005 BCSC 644, and Watt v. R.P. Johnson Construction Ltd. (June 28, 1995), Kamloops Registry No. 20371. Counsel for the defendants referred to Knodell v. New Westminster (City), 2005 BCSC 1316, 14 M.P.L.R. (4th) 258, Short v. New Westminster Rotary et al., (March 20, 1995), Vancouver Registry No. S011935 (B.C.S.C.), and Nabholtz v. Kimberley (City), 2002 BCSC 174.

[70] An issue which does not arise before me (but which affects the relevance of cases cited by counsel) is whether, if the Occupiers Liability Act does apply, it is still necessary to undertake the policy/operational analysis required to determine whether a common law duty of care exists. In Knodell v. New Westminster (City), Joyce J. specifically addressed this issue. Referring to Brown at para. 2, Gobin (Guardian of) v. British Columbia, and Kennedy v. Waterloo County Board of Education (1999), 175 D.L.R. (4th) 106 (Ont. C.A.), he stated at para. 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 …

Joyce J. then referred to Fox v. Vancouver (City), 2003 BCSC 1492, 22 B.C.L.R. (4^th) 126, where the policy immunity defence was upheld in an action involving a slip and fall on a sidewalk. The claim was based on the Occupiers Liability Act and there was no common law claim in negligence. Joyce J. concluded in Knodell that since the decision in Fox was a considered decision in which the relevant case law was reviewed, he was bound to follow it.

[71] All of the slip and fall cases cited by counsel involved claims under the Occupiers Liability Act. They are therefore of limited assistance in deciding whether a duty of care exists in this case, though they do assist in determining whether Fort Nelson took reasonable care if it did owe a duty of care to the plaintiff.

[72] Nabholtz v. Kimberley concerned a slip and fall in an outdoor pedestrian shopping area. The plaintiff in that case slipped on ice covered by fresh snow. The location of the accident was regularly inspected, cleared and sanded pursuant to the defendant municipality’s policy, but had not been inspected, cleared or sanded before the plaintiff fell. The court found there was a duty of care under the Occupiers Liability Act, and that the defendant had met the standard of care.

[73] In Cullinane v. Prince George (City), the plaintiff fell on a sidewalk owned and maintained by the City of Prince George. At trial she alleged that her fall was caused by an unusual build-up of ice, and that the City was negligent and in breach of its obligation under the Occupiers Liability Act. The court referred to the City’s comprehensive policy and procedure for snow and ice removal on sidewalks. However, the court found that ice conditions in the area where the plaintiff fell were both very unusual and very hazardous, that there was no sand or abrasive material applied to them, and that the build-up of ice should have been obvious to the City workers. The court concluded that the City owed a duty to pedestrians to ensure the sidewalk was reasonably safe and had failed in that duty, and that, as occupier of the sidewalk, the City was liable to the plaintiff. The trial decision was upheld on appeal.

[74] Potozny v. Burnaby (City) again was a case under the Occupiers Liability Act. The court concluded in the end that the City, which operated a skating arena, was under an obligation to make it reasonably safe and that it had failed in that duty. The court commented that while it may have been prepared to find that the City had a reasonable maintenance system in place, it could not find that the system was followed on the day of the accident.

[75] Similarly, Mainardi v. Shannon and Watt v. R.P. Johnson Construction Ltd. were cases in which a duty of care existed under the Occupiers Liability Act. In those cases, the defendants were not municipalities or arms of government. In both cases, the court found that the defendants knew or ought to have known of the dangerous conditions that caused injury to the plaintiffs, and did not take reasonable steps to abate those conditions.

(d) Application to this case

[76] The Town’s policy was to maintain its roads in winter. It had decided to do so by removing snow from the lanes of vehicular traffic, following a system of priorities set according to the nature of the road and the amount of traffic to be expected, and by scraping roads with a grader when there was sufficient packed snow. The Town had decided not to inspect for ice or water leaks, but to respond if problems were brought to its attention. These latter decisions, as to the ways and means of maintaining the roads, could be called “secondary” decisions.

[77] The Town’s decision to maintain the roads in winter undoubtedly was a policy decision. The question is whether the secondary decisions (as to the ways in which this would be done) were also policy decisions.

[78] The Supreme Court of Canada has said that in distinguishing between policy and operational decisions the essential question is whether the decisions involved social, political or economic factors, and attempts by the government to balance efficiency and thrift in planning and predetermining the boundaries of its undertakings and of their actual performance – or, on the other hand, whether the decisions involved the practical implementation of formulated policies, based on administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.

[79] The evidence as to the history of the formulation of the Town’s decisions was sparse, and the documentation of those decisions slight. However, I do not find that absence of records or clear documentation to be determinative, in the context of a small community such as Fort Nelson.

[80] Fort Nelson operated within a budget, part of which was an annual allocation for snow removal and ice control. The evidence was that Fort Nelson did not cease snow removal activities even if the budget for those activities for the year had been exceeded. Although counsel for the plaintiff submitted that I should find, therefore, that budgetary considerations did not enter into the formulation of snow removal procedures, I do not draw that inference. I find that budgetary considerations inevitably were involved in the decisions as to what activities the Town would undertake.

[81] The evidence was that the snow removal procedures and the annual budget were developed by persons at a senior level while the day-to-day implementation of the Town’s snow removal activities was delegated to Mr. Thomson. The level of seniority of the decision-maker is not conclusive of whether a decision is a policy decision, though “it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency”: Just at 1245.

[82] Ms. Boles submitted that the decisions that led to the existence of the patch of ice and to the plaintiff’s injuries were: to give 41^st Street Priority No. 2 designation; to plough only the lanes of travel; and not to inspect for ice or for water breaks.

[83] In my view, through those decisions the Town planned and predetermined the boundaries of its undertakings and of their actual performance. All were policy decisions establishing a set of general procedures for snow removal and ice control, against a backdrop of economic and political considerations. No specific operational decision by Mr. Thomson or by anyone else as to the implementation of those general decisions was at issue in this case.

[84] I find that the Town did not owe a duty of care to the plaintiff because the decisions leading to the plaintiff’s very unfortunate injury were ones of policy, not operations.

(e) Breach of duty if there was a duty of care

[85] If the decisions at issue were operational and if Fort Nelson did owe Ms. Talarico a duty of care, I would find that the Town fulfilled that duty and took reasonable care in the circumstances in carrying out its overall policy decision to repair and maintain the roads. It was reasonable for the Town to clear the lanes of traffic according to a system of priorities, to scrape the roads with a grader when snow had built up, and not to inspect for ice or water leaks. Further, there is no evidence that the Town was aware or ought to have been aware of the existence of the particular patch of ice that caused the accident. The Town did deploy crew members to remove snow on December 24 as required by its procedures. I find that there was no breach of duty on the part of the Town, if such a duty of care existed.

(f) Damages if there was a breach of duty

[86] Finally, in case I am wrong and Fort Nelson did breach a duty of care to the plaintiff, I will address the question of damages.

[87] I find that the injuries suffered by the plaintiff as a result of her fall on the ice were relatively serious. She suffered considerable pain, and the injury has disabled her from doing a number of things the same way she was able to before the accident, including riding all-terrain vehicles, hiking, and camping, as well as laundry and housework. She underwent two surgeries and was told that if she was allergic to the metal that was to be inserted, she might die as a result. She was understandably highly anxious about the initial surgery. Pain continued after the first surgery, leading to the need for the second surgery to remove the metal three years later. Ms. Talarico has suffered some psychological issues since the accident, finding herself unable to handle stress as she could before. She has been diagnosed with depression. I find that the injuries suffered in the accident were a contributing cause to those psychological issues, although there were also other stresses in the plaintiff’s life which may have led to the psychological issues in any event.

[88] Ms. Boles submitted that $60,000 in non-pecuniary damages is warranted in this case. She referred to cases which she said were comparable: Nicoll v. The Owners of Strata Plan 1611 et al., 2005 BCSC 770 ($100,000 in non-pecuniary damages for injuries involving the tibia and fibula as well as the ankle, ongoing deformity and leg length discrepancy, and more severe ongoing physical disability than in this case); and Pipe v. Dusome, 2007 BCSC 1066 ($35,000 in non-pecuniary damages for an ankle injury where there was a significant pre-existing knee injury and asymptomatic arthritis of the ankle before the accident).

[89] Ms. Barrett submitted that if there were to be an award for non-pecuniary damages it should be in the range of $40,000 to $50,000. She referred to a number of cases: Forsyth v. Pender Harbour Golf Club Society, 2006 BCSC 1108; Emerson v. Insurance Corporation of British Columbia, 2003 BCSC 1086; Leweke v. Saanich School District No. 63, 2004 BCSC 1251; and Ruckheim v. Robinson (1995), 1 B.C.L.R. (3d) 46 (C.A.), which involved awards in that range in what she argued were comparable circumstances.

[90] I find that the appropriate award for non-pecuniary damages in this case would be $55,000, given the multiple surgeries, ongoing pain, and contribution to psychological issues.

[91] As for income loss, the plaintiff’s position is that she lost $3,150 because she did not receive a bonus in 2007 and received a lower bonus in the previous year. There was evidence that the work the plaintiff missed in 2007, leading to a lower bonus, was caused both by unrelated oral surgery and by the second surgery on her ankle. I find that she would be entitled to $1,700 in lost income to the date of trial.

[92] Ms. Boles argued for $50,000 as damages for lost earning capacity; Ms. Barrett submitted that the steady increase in Ms. Talarico’s income since the accident shows that she has not suffered any lost earning capacity as a result of her injuries. I agree with Ms. Barrett and find that there is no basis for an award for lost earning capacity.

[93] Similarly, I do not find on the evidence a basis for an award for the cost of future care.

[94] Special damages were agreed at $3,040.

CONCLUSION

[95] The plaintiff’s claim against both defendants is dismissed. I am unaware of any reason why the defendants should not have their costs, but counsel may speak to the question of costs if they wish to do so.

“The Honourable Madam Justice Lynn Smith”

Citation:	*Talarico v. Town of Fort Nelson ,*
	2008 BCSC 861