Monday, July 28, 2014

Do I have to fill those pot holes? The duty of Alberta municipalities under the Municipal Government Act (Alberta)

This year (2014) in Calgary residents were delighted that we did not have to experience another flood.  Concerns of flooding was replaced with Calgarian's concerns about the enormous number of pot holes which have appeared over our very long winter.  While reviewing the Municipal Government Act (Alberta) ["MGA"] for other reasons I stumbled across paragraph 532 which appeared to create a mandatory obligation on Municipalities to maintain the roads; the section is repeated below:

Municipal Government Act, RSA 2000, c M-26

Part 13
Liability of Municipalities, Enforcement of Municipal Law and Other Legal Matters

Division 1
Liability of Municipalities

   Repair of roads, public places and public works
532(1)  Every road  or other public place that is subject to the direction, control and management of the municipality, including all public works in, on or above the roads or public place put there by the municipality or by any other person with the permission of the municipality, must be kept in a reasonable state of repair by the municipality, having regard to
(a)    the character of the road, public place or public work, and
(b)    the area of the municipality in which it is located.
(2)  The municipality is liable for damage caused by the municipality failing to perform its duty under subsection (1).
(3)  This section does not apply to any road made or laid out by a private person or any work made or done on a road or place by a private person until the road or work is subject to the direction, control and management of the municipality.
(4)  A municipality is not liable under this section unless the claimant has suffered by reason of the default of the municipality a particular loss or damage beyond what is suffered by the claimant in common with all other persons affected by the state of repair.
(5)  A municipality is not liable under this section in respect of acts done or omitted to be done by persons exercising powers or authorities conferred on them by law, and over which the municipality has no control, if the municipality is not a party to those acts or omissions.
(6)  A municipality is liable under this section only if the municipality knew or should have known of the state of repair.
(7)  A municipality is not liable under this section if the municipality proves that it took reasonable steps to prevent the disrepair from arising.
(8)  When a traffic control device has been defaced, removed or destroyed by someone other than a designated officer or employee or agent of the municipality, the municipality is liable under this section only if the municipality
(a)    had actual notice of the defacement, removal or destruction, and
(b)    failed to restore, repair or replace the traffic control device in a reasonable period of time.
(9)  A person who brings an action under this section must notify the municipality of the event that gives rise to the action within 30 days after the occurrence of the event.
(10)  Failure to notify the municipality bars the action unless
(a)    there is a reasonable excuse for the lack of notice, and the municipality is not prejudiced by the lack of notice,
(b)    death is the result of the event complained of, or
(c)    the municipality waives in writing the requirement for notice.

I noted up (looked for cases which considered this section) and located the Kuz v. Calgary (City), 2008 ABPC 340 case.  In Kuz, Judge McCarthy (at that time a Provincial Court Judge and now of our Court of Appeal) considered this section.  Justice McCarthy explicates the nature of the duty imposed by section 532 of the MGA and then applies the “Policy” Versus “Operational” Dichotomy which must be applied in respect of claims of negligence against municipalities; negligence will only lie if the conduct alleged was negligence in operation.

The Duty of Care Owed by the City:
[18]           If I am correctly interpreting the decisions of the Supreme Court of Canada in Just v. British Columbia 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228 and Brown v. British Columbia 1994 CanLII 121 (SCC), [1994] 1 S.C.R. 420, the City, as the road authority, owes a duty of care to those using its roads.  Furthermore, I interpret those cases to hold that the duty of care extends to taking reasonable steps to prevent injury to users of its roads.  In other words, the duty of care extends beyond the City’s statutory duties set out in Section 532(1) and (7) of the Municipal Government Act, namely to keep roads in a reasonable state of repair and to repair malfunctioning traffic control devices in a reasonable period of time.  The City, of course, had a duty to fix the traffic lights in a reasonable period of time and it discharged that duty in this case; but that does not end the matter because there is also the duty to take reasonable steps to prevent injury to motorists.
The “Policy” Versus “Operational” Dichotomy:

[22]           And before this court can even embark on an inquiry into the adequacy of that precaution, it must decide whether its traffic signal lights re-setting practices are the product of a policy decision by the road authority or are simply an operational decision.  The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot ordinarily be applied to a policy decision, but it can be applied to an operational decision:  Sutherland Shire Council v. Heyman (1985) 60 A.L.R. (Australian High Court-Mason, J) cited with approval in Brown v. British Columbia, supra, (although it should be noted that Sopinka, J., in dissenting in Brown, expressed grave reservations about the use of the “policy/operational” test as the touchstone of liability).
[23]           The principles to be applied in determining whether a decision of government, or in this case of a municipality, is one of policy or operations are set out in Just v. British Columbia, supra.  In Just v. B.C., Justice Cory of the Supreme Court of Canada cited the Australian High Court decision in Sutherland Shire Council v. Heyman as providing “helpful guidelines”.  In the Australian case, the court said at p.35:
“The distinction between policy and operational factors is not easy to formulate, but 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.  Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care.  But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”

In finding for the Plaintiff against the municipality Justice McCarthy repeated the words of the Honourable Justice Dixon:

[34]           Furthermore, on the authorities cited to me, this was not a new problem. In a scathing judgment in 1990, Mr. Justice Dixon of the Alberta Court of Queens Bench in Kozina v. Lajoie, 1990 CanLII 5857 (AB QB), (1990) 103 A.R. 55,  found the City to be negligent in not providing adequate and timely signage in the case of malfunctioning traffic signal lights at Deerfoot Trail and Memorial Drive, the next interchange south of that intersection which is the subject of the within litigation.  Admittedly, much of Justice Dixon’s judicial reproach was reserved for the police department and the facts were different  Kozina  in that the traffic light outages involved more intersections, lasted longer and the response times were nowhere near as quick as in the case at bar; but on the question of traffic control, Mr. Justice Dixon had this to say:
Before leaving the issue of liability, I must record that I am astounded that the three intersections in question were not controlled by peace officers long before the time of the accident....Had the City of Calgary Police Commission been or remained a party in these proceedings, I would have found them liable for neglect of duty.  I concur with the submissions of Mr. Abougoush that the effect of Section 3 of the City of Calgary By-law 40M80 and of the Judgment of Master Quinn in Caratozzolo v. Murdock, Eqatski and City of Edmonton, 47 A.R. 394, are that peace officers have the responsibility for the direction of traffic at uncontrolled intersections within the City of Calgary...”

This section and the application of the legal reasoning of Justice McCarthy could very well form the basis of a judgment against municipalities for failing to repair pot holes in a timely manner.