Sandhu v. The Corporation of Delta Date:, 2012 BCPC 435

Citation: Sandhu v. The Corporation of Delta Date: 20121119 2012 BCPC 0435 File No: 2008-21874 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PERMINDER SANDHU CLAIMANT AND: THE CORPORATION OF DELTA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. O'C. WINGHAM Appearing on their own behalf: P. Sandhu Counsel for the Defendant: P. Bruce Place of Hearing: Richmond , B.C. Date of Hearing: May 30, 2012 & September 17, 2012

Date of Judgment: November 19, 2012 INTRODUCTION [ 1 ] This case involves a claim by Permindar Sandhu (“the Claimant”) against the Corporation of Delta (the “Defendant”) for the sum of $9304.39 for damages relating to the repair of the Claimant's vehicle and personal injuries which the Claimant says that he suffered as a result of his vehicle hitting a pothole on January 9, 2007 at the intersection of Cliveden Avenue and Cliveden Place in the Municipality of Delta. [ 2 ] The Claimant says that the Defendant was negligent in failing to repair the pothole in a timely fashion and in failing to mark the pothole to warn drivers of its existence.

The Defendant says that it was not negligent as alleged by the Claimant. The Defendant says that the municipality had a policy in place for the repair of potholes, that that policy was adhered to and that there was no negligence by any of the Defendant’s employees in the implementation of that policy. The municipality also says that even if it is determined that there was no policy in place it acted reasonably in the repair of the pothole in question. BACKGROUND [ 3 ] On the morning of January 9, 2007 the Claimant was driving to work. It was approximately 7:26 AM and it was dark.

He was driving the route that he normally drives to work and was approaching the intersection of Cliveden Avenue and Cliveden Place. He had been working near that location for approximately 5 years. He testified that he hit an obstruction and that his vehicle came to abrupt stop, causing the seat belt to seize up. He did not know at the time what it was that his vehicle had hit.

He found out that he had a flat tire and some scrapes on one of his wheel rims and that some wheel bearings were bent. [ 4 ] The Claimant testified that he went to work and then in the afternoon at a break he called the Defendant and reported the pothole. He said the information he received was that the Defendant was aware of the pothole and that it had received some other complaints. [ 5 ] Jennifer Clark is the risk manager for the Corporation of Delta. Her responsibilities include handling insurance, claims and waivers. She was called by the Claimant as a witness as part of his case. [ 6 ] Ms.

Clark testified that she is the primary receiver of claims for the Corporation of Delta. She said that in January, 2007 there had been a freeze and thaw cycle take place for several months and that there were multiple potholes as a result. [ 7 ] Ms. Clark also testified that on January 9 she received four or five complaints and that the Claimant was one of the complainants who reported that he had damage to his tire from a pothole. [ 8 ] Ms. Clark produced three requests for service which were relating to pothole complaints received by her on January 4, 8 and 9, 2007.

All three requests related to complaints of potholes in the Cliveden Avenue and Cliveden Place area. [ 9 ] One request for service recorded a call that came in on January 8, 2007 at 2:35 PM concerning a pothole on Cliveden Avenue in Delta. The request for service was assigned to the roads superintendent, Dick Molenaar. The work order was printed at 3:17 PM and as of 8:52 AM on January 9, 2007 the Defendant’s road maintenance crew was on site either repairing or completing the repair to the pothole. [ 10 ] A second request for service related to a complaint that was received at 3:53 PM on January 8, 2007. Ms.

Clark testified that the complaint was assigned to Dick Molenaar at 6:54 AM on January 9, 2007. The work was either being worked on or completed at 8:51 AM. [ 11 ] A third request for service was produced which was dated January 4, 2007. The complaint concerned two potholes at Cliveden Avenue and Cliveden Place. The request for service was assigned to Dick Molenaar at 9:19 AM and the work was completed by 10:35 AM. [ 12 ] Ms. Clark testified that Delta does not have a written policy but a policy does exist that a complaint should be documented and responded to within 72 hours.

She said the service expectation for pothole repairs is 24 hours. [ 13 ] Ms. Clark testified that Delta is not proactive but is complaint driven. Her evidence was "we would rather do the repair than look for them". By this I understood her to mean that Delta had chosen to use its resources to do the repair work rather than to look for areas that needed to be repaired. [ 14 ] Dick Molenaar is the roads superintendent for Delta. He has held that position for over six years and has been working in roads maintenance for 20 years.

He testified that the January 1, 2007 to March 1, 2007 period was a very bad season for potholes. He said that potholes can develop in a matter of hours, depending on the weather, the condition of the road and the amount of traffic on the road. He described Cliveden Avenue and Cliveden Place as a major industrial traffic route.

[15] Mr. Molenaar testified that Delta did does not have a written policy. He said, however, that Delta has a response time standardof 72 hours for responding to service requests, but that usually the repair is done within 24 hours. He also testified that generally Deltadoes not re-inspect its repairs unless another call comes in as Delta does not have the resources to do so. [16] Mr. Molenaar testified that at the time of the incident which gave rise to this claim the asphalt plants were closed for theholidays and so Delta was using a product called “Tag 8000”.

He described that compound as being permanent under good conditionsbut that if the weather is inclement it will hold but may need repair if another call comes in. [17] He testified that once the repair at Cliveden Avenue and Cliveden Place had been made the repair was not marked with trafficcones because at that intersection they would not have lasted "2 seconds" because of the volume of cars and heavy trucks. [18] With respect to the request for service that came in at 2:35 PM Mr. Molenaar testified that the road crew’s shift ends at 3:00 PMand that Delta does not have a night shift.

As a result, the repair was done the first thing the next morning. On cross examination Mr. Molenaar testified that he tries to respond to pothole complaints as soon as they come across his desk and that it hasalways been that way with pothole complaints. He testified that his department did not have the funds to go back and check repairs butthat they would go back if there is another service request. He testified that it is the City's objective to fix it right the first time.

The Law [19] The issue of the liability of municipalities in negligence was discussed by the Supreme Court of Canada in Housen v.Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. In that case, at paragraph 38, the court stated as follows: We agree with our colleague that the correct statement of the municipality’s standard of care is that found in Partridge v. RuralMunicipality of Langenburg, (SK CA), [1929] 3 W.W.R. 555 (Sask.

C.A.), per Martin J.A., at pp. 558-59: The extent of the statutory obligation placed upon municipal corporations to keep in repair the highways under their jurisdiction, hasbeen variously stated in numerous reported cases. There is, however, a general rule which may be gathered from the decisions, and thatis, that the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon itwith safety.

What is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances; "repair" is arelative term, and hence the facts in one case afford no fixed rule [page 264] by which to determine another case where the facts aredifferent… [20] In Barrett v.

North Vancouver (District), (SCC), [1980] 2 S.C.R. 418 the Supreme Court of Canada statedthat the method which a municipality chooses to exercise its power to maintain a road is a matter of policy to be determined by themunicipality itself and that the municipality could not be held to be negligent because it formulated one policy of operation rather thananother.

The court stated, at page 8, that : If, in the implementation of its policy its servants acted negligently causing damage, liability could arise, but the municipality cannot beheld to be negligent because it formulated one policy of operation rather than another." [21] The Court determined in that case that the trial judge, by stating that a municipality was an insurer against injury arising from"any of the potholes" he was defining too high a duty. [22] Policy decisions can be made both by persons of a high level of authority and by persons of a lower level of authority.

In Just v.British Columbia , (SCC), [1989] 2 S.C.R. 1228 at paragraph 29 the Supreme Court of Canada stated: In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of ahigh level of authority in the agency, but may also properly be made by persons of the lower level of authority. The characterization ofsuch a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetaryallotments for departments or government agencies will be classified as policy decisions.

Further, it must be recalled that a policydecision is open to challenge on the basis that it is not made in a bona fide exercise of discretion. If after due consideration it is found thata duty of care is owned by the government agency and no exemption by way of statute or policy decision making is found to exist, atraditional torts analysis ensues and the issue of standard of care required of a government agency must next be considered. ANALYSIS

Was there a Policy? [ 23 ] The evidence establishes on a balance of probabilities that the Defendant did have a policy in place for the repair of potholes. While it may not have been a written policy it was a policy that appeared to be well established and in existence for many years prior to the incident leading to the claim in this case. Ms. Clark described the policy as responding to the complaint within 72 hours although internally there was a service expectation to get to the area complained about as soon as practicable and that generally that was to be within 24 hours. [ 24 ] Ms.

Clark’s evidence that Delta is complaint driven [reactive] rather than proactive and that Delta would prefer to fix the problem complained of rather than look for it is corroborated by the evidence of Dick Molenaar that Delta does not generally re-inspect repairs made as they do not have the resources to do so. Mr. Molenaar's evidence also corroborated the evidence of Ms.

Clark that while there is no written policy there is a standard 72 hour response time with repairs of potholes usually being completed within 24 hours. [ 25 ] The evidence also establishes that that standard was complied with and in fact the repairs were effected well within the 24-hour standard with, one being repaired within hours. Was the Defendant Negligent in the Application of Its Policy or Generally? [ 26 ] As stated, the evidence indicates that the repair to the pothole in question was effected well within the 24 hour standard for pothole repair maintained by the Defendant municipality.

I find that there was no negligence by the Defendant or any of its servants in the implementation of its pothole repair policy. Even if it were determined that there was no policy in place by the Defendant for the repair of potholes the evidence does not support a finding that the Defendant was negligent in responding to the complaints it received concerning potholes at Cliveden Avenue and Cliveden Place on the date in question or that it was negligent repairing those potholes. Once the complaints of the potholes were received service requests were generated within minutes to the superintendent of roads.

Two of the complaints were received after 2:30 PM and were responded to early the following morning. Delta could not respond earlier as it did not have a crew on duty after 3:00 PM. The third complaint in evidence at trial was repaired within hours. [ 27 ] The Claimant has referred to the decision of His Honour Judge Romilly in this Court in Simpson v. Sandpiper Contracting Ltd. [2002] B.C.J. No. 2067 (BCPC) . In that case the court found the Defendant municipality 70% liable for damage to the Claimant’s vehicle after it had hit a pothole.

In doing so the Court determined that the use of a compound of cold mix asphalt (similar to Tag 8000 used in this case) which could be displaced easily if it rains made it incumbent on the City to place warning signs on the site. [ 28 ] I note that the Court in the Simpson case was apparently not referred to any of the Supreme Court of Canada cases cited above.

I also note that there is no reference in that case to any policy which the defendant City had for the repair of potholes. [ 29 ] In this case the use of Tag 8000 to repair the potholes rather than hot mix concrete, which would have been ideal, was explained by the fact that because of the holiday season the hot asphalt plants were closed and the Tag 8000 could be considered permanent under the proper conditions. This case, it seems to me, is similar to the case before his Honour Judge Lemiski in Hodal v. City of Surrey , Unreported, Surrey Registry 62762, February 17, 2009.

In that case the Claimant was driving on the King George Highway in Surrey when she encountered some small potholes that caused her to slow down. She then struck a large pothole which she testified she could not avoid. There were apparently no signs and there was very little warning. Her vehicle was damaged. At paragraph 13 Lemiski, J. stated: Here it strikes me that what has occurred is an accident. It is a motor vehicle accident where a typical hazard in a road, a hazard that would be known to drivers who drive on the roads, was encountered and it had unfortunate severe consequences.

One cannot throw the severe consequences back onto the City of Surrey without establishing that there was negligence, and again I accept Ms. Hodal’s position that possibly there was negligence, but that is not the test. She has to demonstrate that there probably was negligence and in my opinion she does not succeed on the evidence before me with that argument. So, with that, the claim is dismissed. On the issue of placing warning devices around the repairs Lemiski stated, at para. [11]: I question the sign, flagging, instant warnings.

It strikes me, again using life experience, common sense, together with the evidence to some extent of Mr. Perpira, that to have little red cones or even flashing barriers up all over the highway in the rain, for example, with people knocking them down, wind knocking them over, with people stealing them, is a very difficult approach to the problem.

Again, with respect to even putting up signage on the highway that, for example, this stretch of road frequently has deep potholes, if one is going to bolt that sign, and I think it would be an obligation on the City not simply to tape a sign on a post, if one is going to take time to bolt a proper sign to a post and then have to take that down after a week and replace it the following week, it seems to me there would be no end of labour and distraction in the whole process.

[ 30 ] In this case the failure of the municipality to set up cones around the repaired potholes was explained by Mr. Molenaar. He said that it would have been pointless as they would have disappeared within seconds given the heavy volume of traffic in that area. His explanation is reasonable and realistic. It is acknowledged that the area where the pothole was located is an area where there is a large volume of traffic, including heavy truck traffic.

Summary and Conclusion [ 31 ] I conclude that the evidence in this case establishes on a balance of probabilities that the Defendant municipality had an oral policy in place for the repair of potholes and other complaints respecting the maintenance of the roads in Delta. That policy was that the repair would be attended to within 72 hours but that in the case of potholes the standard was less. It was 24 hours.

The evidence also establishes that in the case of the potholes at the location complained of by the Claimant on the date complained of by the Claimant the Defendant municipality implemented its policy and was not negligent in the implementation of that policy. [ 32 ] I also conclude that even if it could be said that the Defendant municipality did not have a policy relating to the repair of potholes the Claimant has not proven on a balance of probabilities that the Defendant municipality was negligent in responding to and repairing the potholes complained of. [ 33 ] As a result, the claim is dismissed. _________________________________ The Honourable Judge J.

O’C. Wingham Provincial Court of British Columbia