Pecanac v Camrose (City), 2021 ABQB 15

Court of Queen’s Bench of Alberta Citation: Pecanac v Camrose (City), 2021 ABQB 15 Date: 20210107 Docket: 1812 00336 Registry: Wetaskiwin Between: Jasminka Pecanac aka Jasminka Solic and Her Majesty the Queen in Right of Alberta Plaintiffs - and - The City of Camrose and John Doe Defendants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A. This Decision [ 1 ] What follows is a near verbatim rendition of the oral reasons for decision that I gave on December 10, 2020.

I have only added headings, proper legal citations and a few additional words here and there words to improve readability. I have not otherwise added to the substance of the original decision. [ 2 ] This written version is provided for accessibility purposes only. The official decision of the Court remains the oral version

rendered earlier. B. Background [ 3 ] The defendant City applies for

summary judgment on the basis that the record is complete and amply demonstrates that gross negligence on its

part cannot be proved to the required civil standard. [ 4 ] The Plaintiff, Ms. Pecanac, resists on three grounds: • First, that the law is in flux with respect to government immunity for operational decisions versus policy choices, and

summary judgment should not be used as a vehicle to settle overarching questions of law that may have expansive societal effect; • Second, that the City’s actions, decisions or omissions, as illustrated through hypothetical scenarios, show that operational decisions may well have been made and there is a triable issue with respect to gross negligence; and • Third, the record is not so robust as to permit

summary judgment because of a lack of information of what the City did or did not know regarding the particular condition of that particular laneway on the morning in question. [ 5 ] The following is uncontested: • Ms. Pecanac at 5:45 a.m. on February 17, 2017 slipped on ice while traversing a laneway in the City of Camrose. This laneway leads on to 50 th Avenue in Camrose, a main thoroughfare. The exact location of the accident is important because different sections of City policy apply to sidewalks, lanes and roads. • Ms. Pecanac’s evidence is that she encountered a

section of sidewalk where it intersects with the lane at 50 th Avenue, which she described as “slippery” and which her counsel described as “icy and impassable” in his brief. To avoid that section, she stepped onto the lane apron, which is part of the lane and not the sidewalk, and which slopes toward the road. There, on the lane apron, she says she stepped on a patch of black ice that was covered by snow, and fell. • The injuries she sustained, relatively speaking, were serious: a compression fracture of the L1 vertebrae and a broken left arm.

The latter required closed reduction surgery and the insertion of wiring and pins. • Ms.

Pecanac reported that she had been on foot that early morning on her usual route to work and had encountered no difficulty with icy sidewalks or dangerous footing, while walking for approximately 15 minutes before the accident occurred. • The environmental records reveal that between February 11 and February 17, there had been a bit of a freeze/thaw cycle going on, with temperatures ranging between -4.8°C (on February 17) and +13.2°C (February 13). • There had been no snowfall between February 11 and February 16, but a drizzle of something, either snow or rain, occurred on the evening of February 16, the evening before the accident. [ 6 ] The evidence of the City, through the affidavit of Mr.

Enarson filed August 24, 2020 and his questioning on affidavit occurring on September 20, 2020, also uncontested, discussed the measures, established by City policy, to deal with maintenance of sidewalks, lanes and roads in terms of ice and snow.

In particular: • The policy establishes priorities (Categories 1, 2 and 3) which are defined by the degree of use. • At page 3 of the policy, plowing, or the clearing of snow by means of a snowplow, on residential roads and lanes is initiated at the discretion of the Director of Public Works, where the road or lane is at risk of becoming impassable for emergency services and the general public. • At page 5, the policy says that sanding is done only on roads. • On page 6, designated sidewalks, that is sidewalks adjacent to City property or within park areas, are cleared of snow generally within 48 hours of a storm; and, by necessary implication, other sidewalks are excluded. [ 7 ] The Court recognizes that municipal policies are the function of the will of elected officials and bureaucrats exercising their statutory discretion in the public interest and therefore deserving of deference from the Courts. [ 8 ] Another City employee, Mr.

Sacker, in his affidavit of May 5, 2020, indicated: • A substance known as composite (a combination of sand and salt) is applied to lanes in the event of freezing rain, and in response to citizen complaints. • The City’s maintenance records, on the relevant dates in February, show that the road adjacent to the accident site had had snow removal done at the City’s instance but that no maintenance, that is, snow clearance, had been done to the lane where the accident occurred at any time in 2017 prior to the slip and fall. • Under policy, the clearance of snow on lanes, including the accident site, was not indicated for that morning or any other time in February 2017.

• Even if it was, there was no practical opportunity for the City to do anything prior to 5:45 a.m., even assuming there was a skiff ofsnow or freezing rain during the night, because City crews finish at 5 p.m. and do not resume work until 8 a.m. [9] It is noted that spot-checking or roving crews of inspectors during the interval between 5 p.m. and 8 a.m. are not called forunder the policy. [10] I should add that I did view the video, created by the Plaintiff and her husband some eight hours after the accident occurred.The video does not help the Plaintiff in the least because it shows a clear, bare sidewalk and although there are icy patches on the laneapron, it is clearly traversable by foot.

The conditions of the accident site between when the accident occurred and when the video wasmade must have changed. The video is only helpful in pinpointing the exact location of the accident. C. Test for

Summary Judgment [11] There was no disagreement between counsel regarding the applicable law with respect to

summary judgment, but there wasdisagreement regarding how the law applies here. [12] Briefly stated, in considering

summary judgment under Rule 7.3 in Alberta, the Court is required to apply the test forsummary judgment from Hryniak v Maudlin, 2014 SCC 7 and the standard of proof for

summary judgment per Weir Jones TechnicalServices Inc v Purolator Courier Ltd, 2019 ABCA 49. [13] Under Hryniak,

summary judgment is indicated where the record allows the Court to make the necessary findings of fact,apply the law to the facts and where

summary judgment is a proportionate, more expeditious and less expensive means to achieve a justresult. Applying Weir Jones, the question is whether the matter can be fairly resolved on a

summary basis or whether the facts, therecord or the law reveal a genuine issue requiring a trial. The moving party must meet the burden of showing there is either “no merit” or“no defence” based on facts proven on a balance of probabilities and therefore no genuine issue requiring a trial. If the moving partymeets this burden, then the resisting party must put its best foot forward to demonstrate from the record that there is a genuine issuerequiring a trial. Overall, the Court must have confidence that the state of the record is such that judicial discretion should be exercised toresolve the dispute summarily. D. Statutory Immunity under the Municipal Government Act [14] The City relies on

section 530 of the Municipal Government Act which it says protects Alberta municipalities from liabilityarising from their decisions about how and when to conduct maintenance and inspections. Under this section, the City cannot be heldliable for damage caused by a system of inspection or maintenance, including the manner in which inspections and maintenance areperformed, or the frequency, infrequency, or absence of inspections and maintenance. [15] Under this section, the City’s system of winter maintenance for its roads and pedestrian sidewalks is not subject to review bythe Court.

Consequently, the City cannot be held liable for its decisions to perform winter maintenance only on designated sidewalks,prioritize snow clearing and ice control, and perform winter maintenance on lanes only in circumstances where the lane is deemed“impassable”. [16] Further, section 531 (1) of the MGA states that: 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 in themunicipality if the municipality is grossly negligent. [17] Gross negligence is a statutory concept that has been defined by the common law.

It is commonly understood as meaning“very great negligence”: Duret v Calgary (City), [1990] AJ No 1052 (QB), “very marked departure from standards by which responsibleand competent people typically govern themselves”: Nelson v Grande Prairie (City), 2018 ABQB 537 at para 20 citing McCulloch vMurray, (SCC), [1942] SCR 141 or “flagrant or gross dereliction of duty”: Huycke v The Town of Coburg, (ON CA), [1937] OR 682 (CA) at page 5. [18] It is a high standard to meet. E. Components of Gross Negligence [19] Counsel for Ms.

Pecanac referred to these cases in argument: • Harper v Prescott (Town), [1940] SCR 688, (SCC) where the municipality was aware of the dangerous icycondition on the sidewalk, but had no real opportunity to remedy the situation. • Grabczewski v Edmonton, , 34 Alta LR (2d) 18 (ABQB) in which the danger presented by an icy sidewalk hadbeen obvious for some weeks but nothing done. • Lutz v City of Toronto et al, , 8 OR (2d) 16 (ONSC) which occurred on Toronto’s Danforth Avenue and in whichthere was lots of independent evidence of the danger posed by an icy walkway, which was obvious and persistent.

There was also asystem of inspection in place that had failed in this case. • Humenick v The City of Toronto, , [1949] OR 362 (ONSC) in which an inspector had actually been to the siteseveral times prior to the accident and ought to have known about the existence of the hazard, but did nothing.

[ 20 ] From the survey of the cases, I see these common elements where gross negligence for a slippery walkway is found: • first, the danger posed by the hazard is obvious; • second, there is a persistent presence of the danger in that it must exist for at least some period of time; • third, there is actual or imputed knowledge on the part of the municipality or its employees; and • last, even with knowledge, the municipality must have a meaningful opportunity to remedy the situation. F.

Analysis [ 21 ] In this case, the environmental records indicate that on the preceding evening there was some kind of precipitation, described as a “drizzle”. Whether that precipitation created the hazard is unknown. If the hazard was so created, the question is then whether the City should have known and, if known, what the City should have done about it. [ 22 ] Here, I find that it was not practically possible for the City to have done anything even if the hazard had been so created and the City had known about it.

There was simply nothing to be done between the evening of February 16 and the morning of February 17, when City employees are off duty between 5 p.m. and 8 a.m. Hours of work for City employees are also a function of policy, not a choice made every day. [ 23 ] On the question whether the City, in failing to act when Ms. Pecanac found the sidewalk “impassable” due to icy conditions, I note the following: • Ms.

Pecanac (or, more accurately, her counsel) uses the word to describe the condition of the sidewalk where it crosses the lane, not the laneway. • In the policy, the requirement for remediation relates to an impassable lane, not a sidewalk. • While it is true that the policy contains no definition of the word “impassable”, the words and the policy must be read contextually. The heading under which this policy passage appears is “Streets” (notably, not “Sidewalks”). The policy states that the condition of being impassable relates to emergency services plus the general public.

In this context, the condition of being impassable must relate to vehicular traffic, such that emergency vehicles such as fire trucks, ambulances and police vehicles can get to where they need to go. [ 24 ] Finally, on this point, Ms. Pecanac did not find the lane apron slippery or impassable. She found the sidewalk slippery or impassable and therefore chose to step onto the lane apron. [ 25 ] Under the policy, the City had no obligation to attend to that particular stretch of sidewalk. It certainly had no obligation to attend to that small patch of lane apron that Ms.

Pecanac unfortunately chose to step on. [ 26 ] Moreover, the City’s maintenance records show that no application of discretion occurred, that is, there is no evidence that the City knew about and then chose not to do anything about that patch of ice. Indeed, there is no evidence of any knowledge of the City’s part of any danger. Therefore there was no operational decision or choice made that can now be second-guessed.

This is important for two reasons. [ 27 ] First, the fact that there was no operational choice made is because there was no knowledge, actual or imputed, that could be attributable to the City so as to give rise to an operational choice. Therefore there is no triable case on the issue of gross negligence. [ 28 ] Second, I accept there is a dichotomy between government policy and government operations but the distinction does not arise here because there was no operational decision.

Whatever flux in the law may exist on this point is not relevant in this case. [ 29 ] In order for there to be a triable issue with regard to gross negligence, there is a need to develop more evidence. The evidence on the record reveals that no decision was made with regard to the accident site, that there were no employees working between 5 p.m. the previous evening and 5:45 a.m. the following morning when the accident occurred, and no suggestion anywhere of roving crews of City employees taking notes of trouble spots and making decisions.

The City produced its complete records and there is no mention of anything regarding this laneway or sidewalk on February 16 or 17 th . There is no other evidence. The Plaintiff’s case cannot get better. G. Outcome [ 30 ] Overall, I am satisfied that the state of the record is such that judicial discretion should be exercised to summarily resolve the dispute. I assume that the responding party, Ms. Pecanac, has put her best foot forward, as she is required to do.

I do not see how the Plaintiff’s case can improve. [ 31 ] I conclude that I cannot elevate the issue of gross negligence into a triable issue because policy choices versus operational choices cannot be challenged by virtue of

section 530 of the MGA . There was no operational choice made here at all. The City not doing something about a thing it does not know about and cannot know about cannot be the basis of a finding of gross negligence. [ 32 ] I therefore grant the application for

summary dismissal.

[ 33 ] In the event of disagreement as to costs, the parties may approach me with respect to costs within thirty days of the date of this written decision. Heard on the 10 th day of December, 2020. Dated at the City of Wetaskiwin, Alberta this 7 th day of January, 2021. Douglas R. Mah J.C.Q.B.A. Appearances: Dennis J. Parnell Sockett Law for the Plaintiffs James L. Hutson DDC Lawyers LLP for the Defendants