Municipal governments in Alberta have long asserted that the protections afforded to them by the Municipal Government Act effectively made them immune to lawsuits involving negligence claims based on faulty roadway design or the failure to maintain roadway-related infrastructure.
In a recent decision, however, the Alberta Court of Queen’s Bench determined that the protections afforded to municipalities by the legislation can be limited. In Pyke v. City of Calgary, HMC Lawyers successfully argued that the City of Calgary bore some responsibility for a fatal car accident caused by unsafe road conditions in 2014.
Accident on Glenmore Trail left one dead, three injured
On February 8, 2014, one of the plaintiffs (Pyke, who was the defendant in the original lawsuit) was driving a pickup truck over roads with patches slick with ice. Pyke’s truck was travelling east on the Glenmore Trail when it jumped a median and collided with a car driving in the westbound lane, leading to one death and three serious injuries to the people in the car struck by the truck. Unfortunately, this was the second fatal accident occurring under similar circumstances within a two-month period on this particular stretch of roadway.
Initially, the injured parties and estate of the deceased woman filed a lawsuit against Pyke, the owner of Pyke’s vehicle, the City of Calgary, and Allstate Insurance Company. Allstate, which was represented by HMC Lawyers, acted as the SEF 44 (Family Protection Endorsement) insurer for the plaintiffs. SEF 44 insurance steps in when an at-fault party’s insurance may be insufficient to cover the injuries.
Prior to the start of the trial at issue in this decision, the original plaintiffs (the injured family) reached a settlement with the at-fault driver, the SEF 44 insurer, and the City of Calgary. Accordingly, this trial only dealt with the issue of the City’s potential liability for the accident.
Pyke and Allstate alleged City of Calgary liable for unsafe road conditions
The plaintiffs in this trial (Pyke and Allstate) alleged the area of the Glenmore Trail where the accident occurred was unsafe because a median and median barrier dividing the two sides of the road did not meet prevailing safety standards. Additionally, the plaintiffs stated that years of neglect had led to serious accidents, including the one at issue in the case. The buildup of ice, dirt, and gravel on the road had resulted in the median and barrier not being high enough to be effective in preventing accidents.
The City of Calgary claimed to have no liability and relied upon the Limitations Act and the Municipal Government Act. It argued the former prevented the plaintiff from bringing its case because the ten-year limit from the installation of the median had passed, while it claimed the later Act insulated it from liability related to policy decisions.
Municipality’s duty to keep roads “in a reasonable state of repair” to be broadly interpreted
The City claimed the Municipal Government Act obligates it to keep the roads in reasonable repair but does not impose a duty on the City to provide a safe road. The relevant section of the Act reads (emphasis added by the Court):
(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).
The Court noted that case law in Alberta and elsewhere in Canada has given a broad interpretation to the phrase “keep in repair”. As per a 2014 Ontario Court of Appeal decision, “keep in repair” should be read 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”. The Court concluded that the common law had developed against what it described as a “statutory backdrop,” showing how decisions from courts can influence how a law is interpreted.
The Court found that the build-up of gravel rendered the barrier ineffective and left it in a state of disrepair. As a result, the Court concluded that the City of Calgary must bear some liability for the damages suffered by the plaintiffs.
Statutory duty owed regardless of whether decisions were policy-based
The City of Calgary argued it could not be found liable for policy decisions relating to road construction and maintenance (as opposed to operational matters). The Court found that the buildup of gravel, dirt and ice was an operational oversight, not a budgetary or policy one. In fact, even if there were budgetary considerations preventing maintenance from being performed, city workers have the authority to go over budget for safety reasons.
However, the Court ultimately decided that the distinction between policy and operational decisions was moot given the statutory duty placed upon the city to keep its roads (including medians and barriers) reasonably safe for travellers. The Court found that the city had failed in this duty and could not rely on the Municipal Government Act to shield it from liability.
10-year limitation period starts from date of injury, not barrier installation
The City of Calgary’s second defence relied on the application of the Limitations Act. It argued that because the median and barrier were installed in 1987, the 10-year limitation period associated with any flaws in their installation had long passed.
The Court agreed that the engineers who designed the barrier and the workers who installed it could not be held liable. However, it noted that the median and barrier were both permanent features of the road and the City’s duty to maintain them and keep them in repair is continuous. As the duty is ongoing, the limitation period could not yet have expired.
Given that the court has determined that municipal liability can result when a municipality fails to properly maintain roadways and adjacent infrastructure, it is hoped that this decision will encourage municipalities to be more vigilant with respect to roadway maintenance and upkeep.
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