Nelson v Grande Prairie (City), 2019 ABQB 897

Court of Queen’s Bench of Alberta Citation: Nelson v Grande Prairie (City), 2019 ABQB 897 Date: 20191122 Docket: 1604 00459 Registry: Grande Prairie Between: Mary Jo Nelson Plaintiff - and - City of Grande Prairie Defendant _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is a redo of an earlier unsuccessful application for

Summary Dismissal reported at 2018 ABQB 537 . At the first application gaps and uncertainties in the evidence stood in the way of

summary disposition. [ 2 ] The Plaintiff, Ms. Nelson, slipped and fell on a windrow behind her car. [ 3 ] The windrow was in an ‘S’ shape as a result of the City plowing around a neighbour’s parked car. It was approximately one foot (or 30 cm) high. It had been there for roughly two weeks and the Plaintiff had successfully crossed it before, not finding it slippery. The Plaintiff could have gone around the front of her car and avoided it altogether. A freeze-thaw cycle just before the accident turned

the snow into ice. [4] There were no complaints about the windrow. The windrow was not removed by the City and the road was neither sandednor salted. [5]

Section 529 of the Municipal Government Act provides: 529 A municipality that has the discretion to do something is not liable for deciding not to do that thing in good faith or for not doing thatthing. [6] The Defendant plainly has the discretion to remove windrows, or to sand and salt. This

section gives the City an immunityfor not having done those things unless the decision not to do so demonstrates bad faith: RVB Managements Ltd v Rocky MountainHouse (Town), 2014 ABQB 51 (aff’d 2015 ABCA 88). [7]

Section 530 of the Municipal Government Act provides: 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 ofinspections, and (

b) a system of maintenance, or the manner in which maintenance is to be performed, or the frequency, infrequency or absence ofmaintenance. [8] The City cannot be found liable in the circumstances for having a less than infallible system of inspection, or maintenance.No doubt the City could have done more, but that is not the test (eg Shanks v Calgary (City), 2003 ABQB 56). [9] There is no common law liability for policy decisions (eg Holland v Saskatchewan, 2008 SCC 42, at para 14 and R vImperial Tobacco Canada Ltd, 2011 SCC 42, at paras 87, 90). [10] I acknowledge that the City had not strictly complied with its own policy to the extent that windrows were to be plowed to theedges of the road.

However, the location of the windrow, being on the road rather than at the edge of it does not appear to have been theoperative cause of the accident. [11] The City is not liable as an occupier of the road under the Occupiers Liability Act. [12]

Section 531 of the Municipal Government Act provides: 531(1) A municipality is only liable for an injury to a person or damage to property caused by snow, ice or slush on roads or sidewalks inthe municipality if the municipality is grossly negligent. [13] The Act does not draw a distinction between the standard applicable to sidewalks or roads. [14] Gross negligence is a marked departure from the standard expected of a reasonable and competent person (eg HorizonResource Management Ltd v Blaze Energy Ltd, 2011 ABQB 658) reversed in part on other grounds 2013 ABCA 139, Harris vEdmonton (City), at paras 2-4, Duret v Calgary (City), 1990 CarswellAlta 497 at para 57, Grusie v Stirling, 1976CarswellAlta 211 at paras 18, 20. [15] What appears to have happened on this revised and updated evidentiary foundation is that the freeze-thaw cycle turned thewindrow from a surmountable obstacle into an icy hazard that the Plaintiff chose to cross.

I acknowledge that it would have beenpreferable for the City to have taken it away. However, there is no evidence that the City had any knowledge of this particular hazard,much less any time to react to these changed circumstances. The City’s conduct does not constitute gross negligence. The facts of thiscase do not overcome all of the protections built into it under the Municipal Government Act. Disposition [16] The lawsuit is dismissed. Heard on the 14th day of November, 2019. Dated at the City of Grande Prairie, Alberta this 22nd day of November, 2019. W.S. Schlosser M.C.Q.B.A.

Appearances: Yuri Shapoval Taylor & Company for the Plaintiff Anthony Burden Field LLP for the Defendant