Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Steven Graham
Pyke v Calgary (City) 2022 ABQB 198
Municipal Duty of Care | Liability | Municipal Government Act
Karadeniz v Intact Insurance Company, 2022 ABQB 201
Intentional Act | Duty to Defend
Pyke v Calgary (City) 2022 ABQB 198
An action was commenced against the City of Calgary, alleging that a median barrier dividing lanes on Glenmore Trail, in Calgary, did not meet prevailing safety standards and that constant neglect resulted in it falling into a state of disrepair. In an unfortunate accident, a truck lost control on Glenmore Trail and collided with the barrier, where it was launched into the air and across the median, into oncoming traffic, where it collided with another vehicle, resulting in serious and fatal injuries.
The two claims advanced against the City of Calgary were that it made an unsafe road available to the public, and that the road was not kept in a reasonable state of repair. The basis for liability was alleged to be negligence and breach of the Municipal Government Act (“MGA”).
The Court noted that s.532 of the MGA creates a statutory cause of action for failing to repair road infrastructure:
(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).
[Emphasis added]
The obligation has been judicially interpreted to not only keep roads in good care, but also impose a duty upon municipalities to remedy conditions creating a foreseeable risk of harm:
[10] At first glance, MGA s 532 appears to be only a duty to keep roads in reasonable repair; it does not apply to maintenance nor is it a general duty to provide a safe road. But that is not the way that courts have interpreted similar statutory obligations. The Ontario Court of Appeal in Fordham v Dutton-Dunwich (Municipality), 2014 ONCA 891 interpreted the obligation to keep roads in good repair in s 44 of the Municipal Act, SO 2001, c 25 to mean that “a municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care” (para 28). The duty to prevent or remedy conditions that create an unreasonable risk includes an obligation to address matters that would be considered routine maintenance such as a build up of ice on a road: House v Baird, 2017 ONCA 885 at para 47.
Citing the Supreme Court’s decision from Housen v Nikolaisen (2002 SCC 33), the Court determined that the duty to keep roads in a reasonable state of repair does not require the original design or defect to be corrected if it can be mitigated in other ways.
Turning to the scope of the City’s duty of care, after examining the development of the law on this topic, the Court confirmed that a duty of care is owed by a municipality to users of its roads to keep them in a reasonable state of repair:
[21] Properly understood, when a public authority invites people to use a public road, the duty of care is to provide a reasonably safe road. The question of whether a road is reasonably safe includes an assessment of the permanent features of the road and the upkeep of the road. Duties to ensure that the road is reasonably maintained or kept in a reasonable state of repair are components of the general duty to provide a reasonably safe road. What in any given case constitutes a reasonably safe road and what must be done to create or maintain a reasonably safe road are questions of the standard of care.
The well-established authority for a common law duty of care from the Anns decision specifies that a common law duty can be limited or negated by policy considerations. However, where a statutory duty is imposed, the policy distinction becomes irrelevant.
Still, the Court provided an analysis of the policy decisions. Given a lack of submitted evidence on the initial decision to construct the barrier, the Court could only conclude that the intention was to build the barrier in accordance with prevailing engineering and safety standards. Subsequent decisions to not address the build up of dirt and gravel the near the median were considered operational omissions which had occurred over many years. Additionally, documents from the City confirmed that cleaning medians was a mandatory activity in their Spring and Summer maintenance program. The failure of the City to adhere to these programs was considered by the court to be a decision of operational personnel, and not a policy decision, and as such, would not be sufficient to relieve the City from its prima facie duty of care.
When considering the applicable standard of care, the Court noted that Glenmore Trail is one of the busiest roadways in Calgary, which supports a finding that the proper standard of repair is high. While the City argued that the Plaintiffs failed to adduce expert evidence as to the standard of repair in comparable municipalities, the Court disagreed that the same was necessary:
[36] There was expert evidence in the present case establishing that the median barrier presented a safety hazard. There can be no disputing that the type of accident resulting from interaction with the median barrier – vehicles becoming airborne into oncoming traffic on a busy urban highway – is among the most dangerous types of accidents.
[37] Standard of care may be established by reference to other “indicators of reasonable conduct including professional standards and internal policy”: Bergen, para 110. The absence of evidence of the practices of comparable municipalities is more than made up for by the evidence of the City’s internal policies and the standards expressed in its key messages to the media following the accident.
The Court ultimately found sufficient evidence of the City’s standard of care within its own policies and statements, which required regular examination of road infrastructure to ensure compliance with safety standards, including mandatory cleaning and maintenance of medians every year.
The Court heard expert evidence with respect to the type of barrier employed by the City of Calgary. While the barrier itself was found to be sufficient for its purpose of deflecting vehicles, there was evidence that it had been improperly deployed, contrary to Alberta Urban Geometric Design Standards. The improper deployment was noted to create a risk that a vehicle could hit a curb and vault over the barrier, as well as risk that material could build up on the median and impair the barrier’s function.
Further reconstruction evidence pointed to the buildup of debris beside the barrier that greatly reduced its effective height. Evidence from the City was that the buildup of debris on the median of Glenmore Trail had not been cleared in over 10 years. The Court concluded, based on the evidence available, that if not for the ramp of compacted debris, the truck would not have overcome the barrier in the median.
The City of Calgary argued that it did not know that the buildup of debris on the median posed a safety hazard, and by virtue of s.532(6) of the MGA, cannot be found liable. The Court disagreed:
[73] The build up of dirt and gravel and its impact in reducing the functional height of the median barrier was easily observed visually and did not require any technical analysis or measurement to identify. Personnel working on the City’s Median Barrier Review only months after the accident observed the condition of the median on Glenmore Trail between Blackfoot Trail and Deerfoot Trail on a drive-by and reported that: “[a] number of locations have debris build up between the curb and the barrier. The median is too narrow in this section resulting in a smaller clear zone. Based on the visual inspections, height of the existing Thrie beam appears to be lower than standard. Detailed site investigation (measurement of height and offset of barrier) is recommended to determine exact deficiencies at this location” [emphasis added].
[74] The City knew or ought to have known that the dirt and gravel ramp on the Glenmore Trail median was a safety hazard. The City’s summer maintenance plan makes the cleaning of medians mandatory for safety reasons. Quite apart from anything else, including accident data, the presence of the dirt and gravel ramp was easily observed without technical assistance and common-sense dictates that a ramp before a barrier, especially one that materially lowers the functional height of the barrier, creates the hazard of launching vehicles over the barrier.
There was even evidence available that indicated an increased frequency of collision reports where vehicles became stuck on the median or jumped over the median. The Court was satisfied there was sufficient evidence that the City was aware of the issue, but chose not to do anything about it until following this accident.
The City advanced an argument that the claim of negligent design was barred by the Limitations Act, considering the median was constructed well over 10 years prior to the date of the collision. The Court rejected this argument, finding that it was not the negligent design of the road that was the factual cause of the accident but rather the buildup of debris. Additionally, the curb and placement of the barrier were permanent features of the road, which the City has an ongoing duty to maintain as part of their duty to provide a reasonably safe road to the public. The ongoing nature of the obligation meant it could not be barred by the Limitations Act.
The Court then considered whether s.530 or s.533 of the MGA barred the claims, noting that express legislated duties should be interpreted broadly:
[94] Given the express statement that developing and maintaining safe and viable communities is a purpose of the MGA, it follows that, to the extent that the text permits, provisions granting municipalities powers to promote public safety should be interpreted broadly and provisions exempting municipalities from liability for endangering public safety should be construed narrowly.
Section 530 allows a municipality to avoid liability for damage caused by a system of inspection or maintenance, which on its face appears to conflict with the duty of maintenance under s.532. Despite authority that s.530 relieves a municipality of liability under s.532, the Justice declined to follow those decisions:
[96] What is the effect of MGA s 530 on MGA s 532? The MGA s 530 exemption from liability for maintenance conflicts with the MGA s 532 imposition of liability for failing to keep roads in a reasonable state of repair. If municipalities are relieved from any liability relating to maintenance of roads by MGA s 530, then there will almost never be a situation where there can be liability for failing to keep roads in a reasonable state of repair under MGA s 532. And this is exactly what the caselaw shows. Justice Lomas in Shanks v City of Calgary, 2003 ABQB 56 held at para 32 that MGA s 530 relieved a municipality from liability under MGA s 532 for keeping a sidewalk in a reasonable state of repair. The City also relied on Pulkinen v Crowsnest Pass (Municipality), 2020 ABPC 53 where ACJ Redman concluded that MGA s 533 relieved a municipality for liability under MGA s 532 for failing to keep a curb in a reasonable state of repair. I disagree with the analyses in these cases and decline to follow them.
The Justice determined that s.530 could not apply to the maintenance of roads, and that a narrow reading of s.530 that gives effect to s.532 is consistent with the purpose of the MGA to promote and maintain safe communities:
[98] On its face, MGA s 530 applies to all property of a municipality. The general relief from liability for inspection and maintenance failures must be read in light of the specific provision of liability for failure to keep roads and public places in a state of reasonable repair in MGA s 532. A narrow reading of MGA s 530 that gives full effect to MGA s 532 is consistent with a larger purpose of the MGA which is to promote and maintain safe communities. MGA s 530 accordingly does not exempt municipalities from liability for failing to keep roads and public places in a reasonable state of repair. Such an interpretation does not render the MGA s 530 exemption from liability for lack of maintenance meaningless as it still applies to municipal property other than roads and public places and to anything else to which a municipality may have a power or responsibility to inspect or maintain.
[99] What is the effect of MGA s 530 on the common law duty to provide a reasonably safe road? There can only be one meaning of MGA s 530. Given that I have found that MGA s 530 does not apply to the maintenance of roads; it cannot be read to apply to road maintenance for the purpose of the common law and not for the purpose of MGA s 532. In any event, the question is of no consequence because I have found that the common law duty and statutory duty are co-extensive.
The Court then considered whether s.533 of the MGA was a complete defence to the negligence and statutory claim. This section provides:
A municipality is not liable for damage caused
(a) by the presence, absence or type of any wall, fence, guardrail, railing, curb, pavement markings, traffic control device, illumination device or barrier adjacent to or in, along or on a road, or
(b) by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or on a road that is not on the travelled portion of the road.
While the Court agreed that the purpose of s.533 was to protect the decision-making process of a municipality with respect to roadway infrastructure, it does not protect the City from claims if it negligently installs roadway infrastructure. Since the claim was not about the barrier itself, but the poor state of repair of the barrier, s.533 was found to not be applicable:
[104] The present case is not about the presence, absence, or type of barrier; it is about the barrier being in a state of disrepair. MGA s 533(a) as it is written does not extinguish the liability of municipalities at common law for providing an unsafe road nor does it relieve municipalities from liability for failing to repair road infrastructure under MGA s 532. This interpretation is consistent with that of Justice Jeffrey in Steele v Burgos, 2010 ABQB 327 at para 150 and Parkland (County of) v Stetar et al, 1974 CanLII 198 (SCC), [1975] 2 SCR 884.
Consequently, the Court found that the City has some liability to the Plaintiffs for the accident in question, for failing to keep the median and barrier in a reasonable state of repair.
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Karadeniz v Intact Insurance Company, 2022 ABQB 201
At issue in this case was whether the motor vehicle accident was deliberately caused, and consequently whether coverage under the negligent driver’s policy could be limited to the statutory minimum.
In brief, the RBC-insured driver was alleged to have deliberately driven through a parking lot in an attempt to strike one of the Plaintiffs, with whom he had an earlier physical confrontation. The RBC-insured driver was criminally charged and plead guilty to dangerous driving causing bodily harm to the Plaintiffs.
The Court was to consider whether the guilty plea to dangerous driving constituted an intentional act by the RBC-insured driver, such that RBC could reduce its coverage to the $200,000 statutory minimum. The application came before the Justice in a special chambers application with affidavit evidence.
With respect to the guilty plea, the Justice noted that dangerous operation of a motor vehicle requires the Crown to prove the individual operated a motor vehicle in a manner dangerous to the public, on an objective standard. Notably, no finding as to the driver’s intention is required – only an examination of the driver’s actions as compared to those of a reasonable person. The sentencing comments from the criminal proceedings indicated the prosecution concluded the RBC-insured driver did not have an intention of causing injuries.
Additional evidence in the affidavits was provided to support the argument that the act was intentional. After reviewing the various affidavits and statements, the Court had concerns about discrepancies pertaining to the speed of the vehicle, the condition of the parking lot, and others:
[28] It is from these brief statements that the parties want the Court to make a finding regarding Mr. Beausoleil’s intention. They submit that the Court has the power to make this decision solely on the documentary evidence available. RBC submits that the evidence is sufficient for the Court to find Mr. Beausoleil intended to cause loss or damage. The other parties submit that the evidence is sufficient for the Court to find he did not intend to cause loss or damage.
[29] There are discrepancies in the evidence surrounding the circumstances of events on the night in question. However, even in situations where there are discrepancies in documentary evidence, courts can make findings.
The Court noted, however, in this case, that the material fact of intention was in dispute. As such, the evidence was insufficient to support a finding of intention:
[33] RBC submits that the evidence before the Court can support a finding that Mr. Beausoleil intended to cause loss or damage on the night in question. I find that the evidence cannot support such a finding. The affidavit of Mr. Royko provides no direct evidence regarding the issue. The witness statements, which are attached as exhibits to his affidavit, also cannot provide the required level of proof.
[34] Although the witness statement forms used by the Edmonton Police Service contain a warning stating, “it is unlawful to make a false report to the police”, the statements are not sworn documents. This reduces both their reliability and credibility. The police report contains an admission from one of the witnesses, Ms. Mursa, that she was not truthful with the police. She lied on her witness statement by providing a false name. Additionally, the level of detail contained in the statements, when looked at as a whole, is not sufficient to prove Mr. Beausoleil’s intent on the balance of probabilities.
The Court expressed a number of concerns about the various witness statements that required more explanation, and as such it was impossible for the Court to evaluation the reliability and credibility of the evidence at this stage. Accordingly, the Court rejected the position that it could summarily determine the intent of the RBC-insured driver, and directed the question to be determined through a trial of the issue.
Given the above finding, RBC was found to have a duty to defend their insured driver, though the extent of their liability would ultimately be determined at the trial of the matter.