The guest post is written by ERIK MAGRAKEN

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense.   Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable.  Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant.  The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident.  The Court disagreed and dismissed the claim.  In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

[23]         Public authorities do not owe a duty of care in tort if it is established that their actions were based upon a policy decision, unless the decision was made in bad faith or was so irrational as not to be a proper exercise of discretion.  However, public authorities can be liable for operational decisions provided the plaintiff proves the required elements of liability: Just v. British Columbia, [1989] 2 S.C.R. 1228 at 1245; Binette v. Salmon Arm (City), 2017 BCSC 302, aff’d 2018 BCCA 150, at paras. 10–14; Marchi v. Nelson (City of), 2020 BCCA 1 at paras. 14–16.

[24]         As a general rule, decisions concerning budgetary allotments for departments are classified as policy decisions, because they are an attempt by the public authority to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertaking and of their actual performance.  True policy decisions will usually be dictated by financial, economic, social, and political factors or constraints: Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at 441; Binette at para. 12.

[25]         Operational decisions are those concerning the implementation and performance of the formulated policies and are usually made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness: Brown, at p. 441; Binette at para. 12.

[29]         The defendant submits that it is exempt from owing a duty of care to the plaintiff because its actions were in keeping with the Policy, which was put in place bona fide and in good faith based on, among other things, the availability of manpower, equipment, and budgetary constraints. 

[30]         The plaintiff submits that the classification of the Lot as a low priority area was not a bona fide policy because the Lot was along the defendant’s priority routes and could easily have been inspected with little to no extra effort.

[31]         I am satisfied on the evidence presented by the defendant that the Policy was dictated by financial, economic, and budgetary constraints.  It was a proper exercise of discretion.  Included in the Policy was the determination that the defendant’s six public parking lots were areas of low priority for snow and ice inspection and control, in the absence of a particular complaint or extreme weather event.  This was a resource allocation decision and, thus, an unassailable policy decision.

[32]         I also find the policy decision to be reasonable.  It is one thing for priority areas to be inspected and sanded.  To require as a matter of policy that those involved in the inspection of priority areas, at the same time, divert their attention to and engage in an inspection of areas considered low priority is illogical and inconsistent with reasonable resource allocation and prudent policy-making.  In my view, the Policy was bona fide.

bc injury law, Lowe v. Sidney, Mr. Justice G.C. Weatherill, Occupier’s Liability, Policy defence

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