By Taylor Hudson (Associate)

On a cold February morning Tara Pyke lost control of her Ford F-150 due to ice on westbound Glenmore Trail in Calgary, AB, just west of Deerfoot Trail. Despite travelling at the speed limit, and up an incline, her vehicle slid towards the raised median and vaulted the metal barrier, and collided with an oncoming Honda, killing one person, and seriously injuring three more.

The passengers of the Honda, their family members, and the estate of the deceased sued for damages, and all claims were settled prior to trial, save for the issue of whether the City of Calgary was liable in any way for the accident and resulting damages.

Ms. Pyke and the Honda’s insurer Allstate Insurance Company (collectively “Pyke”) opposed the City at trial. David J. Corrigan, K.C., and myself, along with Ms. Pyke’s counsel argued that the City of Calgary (the “City”) was liable due to an accumulation of snow, dirt, and debris which created a ramp on the median between the curb and the face of the median barrier, as shown (Pyke v Calgary (City), 2022 ABQB 198 at para 65):

The City’s policies dictated that this space between the curb and the median barrier should be swept and cleared annually, but there was no evidence led at trial of any such efforts in the 27 years preceding the accident. We argued that the City failed to keep the road in a reasonable state of repair, as required by s 532 of the Municipal Government Act, RSA 2000, c M-26 (“MGA”):

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).
[Emphasis added]

The City contended that even if it was liable under s 532 MGA, the MGA itself also provided the City with immunity from suit.

The Decisions (Pyke v Calgary, 2022 ABQB 198; 2023 ABCA 304)

At trial, Justice Feasby found that the City had actual or constructive notice of this issue, including as a result of a previous fatal accident in December 2013 on Glenmore Trail closer to Deerfoot Trail, an area under the Province’s jurisdiction for maintenance. The Court further determined that but for the ramp of compacted dirt, gravel and snow the F150 would not have vaulted over the median barrier. The remaining issues, including on appeal, were the application and interplay between the MGA’s imposition of liability and immunity.

Justice Feasby found the City liable. It had failed to keep the median and median barrier in a reasonable state of repair pursuant to both s 532 MGA and its common law duties. On appeal, this prima facie finding of liability stood, but the City argued that Justice Feasby had erred in failing to find the City immune from such liability.

The City relied primarily on the immunity provided by sections 530, 533(a) and 533(b) MGA:

530 (1) A municipality is not liable for damage caused by

(a) a system of inspection, or the manner in which inspections are to be performed, or the frequency, infrequency or absence of inspections, and

(b) a system of maintenance, or the manner in which maintenance is to be performed, or the frequency, infrequency or absence of maintenance.

533 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, …

(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.

Justice Feasby held that s 530 did not apply to “roads and public places”, so as to give s 532 full effect consistent with the larger purpose of the MGA, to promote and maintain safe communities. The Court of Appeal agreed with the City that this interpretation was in error, but held that s 530’s general application only excluded liability for aspects of municipal work relating to “discretionary planning or design choices in relation to the inspection and maintenance”. As a result, a municipality may not be liable for damage caused by a failure to keep a road or public place in a state of reasonable repair if the claim hinges solely on an argument that the municipality would have known of the state of disrepair had it planned or designed its systems of inspection or maintenance differently. For example, here, s 530 may have prevailed to protect the City from liability if the City’s knowledge of the state of disrepair was predicated on more frequent inspections or maintenance than it had in place. This does not expose municipalities to widespread liability under s 532, as it remains a prerequisite for liability that the municipality has not taken reasonable steps to prevent the disrepair from arising, pursuant to s 532(7). Only when it has failed to do so can liability arise.

Both Justice Feasby and the Court of Appeal agreed that s 533(a) did not apply. The danger was not caused by the mere presence, absence or type of median barrier. Rather, it arose from its hazardous state. The City could not be liable for a decision to install an economical barrier as opposed to a premium barrier, or for the decision to allocate resources elsewhere and build no barrier at all. But having elected to install this median barrier, s 533(a) did not provide immunity from suit arising from a failure to keep it in a state of reasonable repair.

The City also relied on s 533(b), arguing that the debris forming the ramp fell was an “arrangement or disposition of … earth … or other material” along or on a road, not on the travelled portion of the road. Justice Feasby followed a line of Ontario cases where the phrase “the travelled portion of the road” was given a broad interpretation and held that the median on Glenmore Trail was part of the travelled portion of the road. The Court of Appeal disagreed, preferring an interpretation limited to “those portions of the road intended by the municipality for ordinary use by traffic or commonly used by the public for that purpose”, as this was consistent with the legislative text, and statutory context and purpose.

Nevertheless, s 533(b) did not provide the City with immunity from suit. The Court of Appeal agreed with Justice Feasby that the language of the provision requires an element of intention. Thus, it protects the City from liability for the planned placement in good faith of material or things adjacent to or on or along a road outside of the intended travel lanes. As there was no evidence of the City’s intention to place the debris forming a ramp, s 533(b) had no application.

Conclusion

The Court of Appeal of Alberta has made clear that all the provisions of the MGA at play are to be given purpose and meaning. The liability imposed on a municipality for damages arising from a failure to maintain roads or public places in a reasonable state of repair, once established, will not be merely academic due to the overlapping shields of immunity afforded to municipalities. Rather, the protections of s 530 are limited to liability arising from discretionary planning or design choices, rather than the entire realm of inspections and maintenance.

Similarly, s 533(a) protects decisions to place a particular type of protective infrastructure or traffic device (or to place none at all), but does not provide immunity for a failure to keep the same in good repair once installed.
S 533(b) protects a municipality’s intentional placement of materials, outside of the travel lanes, but does not extend to liability arising from incidental placement, as occurred here.

The result echoes the policy-operations dichotomy that the Supreme Court of Canada recently affirmed in Nelson v Marchi, 2021 SCC 41. A public authority’s common law duty of care will not arise where the matter in issue is one of policy. Here, the MGA’s immunity provisions provide similar protection for intentional or discretionary planning choices, but promote and maintain safe communities through the imposition of liability under s 532 where a state of disrepair arises through failure to implement or follow-through with discretionary planning choices.

The apparent paradox of the MGA’s liability and immunity provisions has been detangled.