Lichy v. City of Surrey Date:, 2016 BCPC 55

Citation: Lichy v. City of Surrey Date: 20160222 2016 BCPC 0055 File No: S77508 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Division BETWEEN: TOMAS LICHY CLAIMANT AND: CITY OF SURREY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.J. FERRISS Appearing in person: T. Lichy Counsel for the Defendant: B. Lee Place of Hearing: Surrey , B.C. Date of Hearing: January 19, 2016

Date of Judgment: February 22, 2016 [ 1 ] On October 14, 2014, at approximately 9:20 p.m., the Claimant, Tomas Lichy, took the family dog, Knightley, out for a walk near University Drive and 105A Street in Surrey, British Columbia. While he and Knightley were walking along the cycle path under the SkyTrain tracks, Knightley fell into a hole in the pavement. The hole in the pavement was there because a bollard or post dividing the cycle path had been removed by someone. [ 2 ] Knightley broke his leg and received an abrasion to his chin as a result of falling into the hole.

There is no issue as to the extent of Knightley’s injuries, the cost of the treatment, or that the injuries were sustained as a result of the fall into the hole. [ 3 ] Mr. Lichy claims that the Defendant, the City of Surrey (the “City”) was negligent in its inspection of the cycle path and that resulted in the injuries to Knightley. He is suing the City for his veterinarian bills of $2,724.77 plus filing fees and service fees for a total of $2,904.77. ISSUES [ 4 ] The following issues must be resolved in Mr. Lichy’s favour before a court can award him the damages he seeks: 1.

Was the missing bollard the cause of the injuries to Knightley? 2. Is there “a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the … [City], carelessness on … [its] part may be likely to cause damage to” Mr. Lichy or his dog, Knightley: Anns v. Merton London Borough Council, [1978] A.C. 728 at pages 751-52 . 3. If so, is there a statutory exemption or is the action or inaction on the part of the defendant a result of a policy decision? If it was a result of a policy decision, is the policy decision made bona fide ? 4.

If the action or inaction on the part of the defendant falls under the operational aspect of a governmental activity, did the defendant breach the standard of care required of it? FACTS: [ 5 ] Mr. Lichy usually takes his dog, Knightley, out for a stroll just before bed each night. He walks on the east side of University Drive rather than the west side because he feels the sidewalk on the east side is safer. However on October 14, 2014, he decided to walk Knightley down the west side because there was glass on the ground on his usual route. [ 6 ] Knightley and Mr.

Lichy were beginning to walk down the cycle path under the SkyTrain tracks when Knightley fell into a hole on the path and began screaming. Mr. Lichy says that when Knightley got his right front leg out of the hole, he could not walk on it. Two other people helped him pick up the dog and take the dog to the apartment Mr. Lichy shares with his wife, Nesim Lichy. [ 7 ] Ms. Lichy testified that she was in their apartment when she heard the horrible dog screams and recognized that it was Knightley. When Mr.

Lichy arrived at the apartment building with the two other people, they had to carry Knightly to their apartment by way of the elevator. She took care of Knightley while Mr. Lichy went to take pictures of the area the incident had occurred in. Ms. Lichy said that both Mr. Lichy and Knightley were shaking when they returned home. Mr. Lichy called the veterinarian but it was after hours and nothing could be done right then. The Lichys made a splint for Knightley’s leg and Ms.

Lichy remained up with him most of the night. [ 8 ] That night at 11:21 p.m. the Lichys submitted a Request for Service to the City over the internet. It says: “Hi, Tonight I went for a walk with my dog. A post with limits access for cars to the cycling land on a side walk was missing, my dogs leg fell into the hole and it’s most likely broken. I will visit vet tomorro 10/15/214. I have a pictures and witnesses when it happened. Pictures are online … Witness are 2 random guys and a girl which were around … Please replace the post ASAP so some other accident doesn’t happen. I know it was over there few weeks ago.

I will also EXPECT compensation for a medical veterinary bills. Once I will have definitive results they will be included in the same folder for you to se. Best Regards, Tomas Lichy.” [ 9 ] Both Mr. and Ms. Lichy were very articulate at trial and it is clear to me that one or both of them wrote the message while they were still in a state of shock. [ 10 ] Ms. Lichy went to school at approximately 6:30 a.m. the next day, when it was still dark, and she walked by the scene of the incident. She said that, in her opinion, one would not think there should be a bollard in that location.

She said she was looking at the sidewalk and could not see the hole. [ 11 ] In response to the Request for Service, at 10:35 a.m. on October 15, 2014, a new bollard was placed in the hole and locked by an employee of the City. [ 12 ] On October 15, 2014, Mr. Lichy took Knightley to the veterinarian clinic. Surgery was scheduled and a plate with screws and a cerclage wire was inserted and later removed when the leg was healed. [ 13 ] There was no evidence of who actually paid for the surgery and other expenses claimed, but the invoices from Fraser Heights Animal Hospital list Ms. Lichy as the client.

I do not find that to be determinative as to who paid the invoice. Ms. Lichy may have been the person who brought Knightley in for the first appointment when they adopted him and the veterinarian regards her as Knightley’s owner even though he is the family dog. Neither Mr. nor Ms. Lichy were cross-examined on who paid for the veterinarian expenses.

[ 14 ] The hole for the bollard is 10 to 15 feet from the curb at the intersection of University Drive and 105A Street. It appears that the hole was about six to eight inches in diameter. [ 15 ] Mr. Lichy testified that the hole for the bollard was in the middle of the paved path. It was not visible because it was dark outside and the lighting was poor on the cycle path. He says the hole was really dark and the metal around it was a matte black. The hole blended in with the asphalt around it. [ 16 ] Mr.

Lichy says that he was vigilant at all times, especially because he had already noticed glass on the ground where he usually walks Knightley. He said he was not walking quickly with Knightley because the dog likes to look around and has a slower pace. He estimated his speed to be a medium to slow walk. He said he was paying attention and looking forward but not down. [ 17 ] Knightley is a rescued greyhound and weighs approximately 35 kilograms. Because greyhounds are fast, the Greyhound Society had adjusted Knightley’s leash to four feet in length so he would not be hurt in the event he bolted. However, Mr.

Lichy said that Knightley was not and is not difficult to control as he knows he is on a short leash. Knightley is afraid of sewer covers and normally tries to avoid them. Mr. Lichy says that Knightley is used to the normal sounds of the area such as the SkyTrain. [ 18 ] Mr. Lichy also testified that he seldom uses the SkyTrain himself and when he is walking, he usually walks on the other side of University Drive. As a result he had no recollection of the bollard being on the cycle path and only found out about it after the incident.

He said there was no bollard he could see in the area of the hole. [ 19 ] Both Mr. and Ms. Lichy appeared confused as to who or why the Request for Service they put on the Surrey website on October 14, 2014 would have said, “I know it was over there few weeks ago” when referring to the bollard. Mr. Lichy felt Ms. Lichy had helped him write the complaint and Ms. Lichy said she could not recall who wrote it. She said if the bollard was there someone would notice it, but if it was not there, they would not remember something was missing. Mr. Lichy maintained that he did not know it had been there a few weeks ago.

I note, however, that the photo of the bollard Mr. Lichy found on Google Street View was taken on July 2014 and perhaps that is where he got the idea it had been there previously. [ 20 ] I found both Mr. and Ms. Lichy to be careful and honest witnesses. I accept their recounting of the events surrounding the incident. [ 21 ] Mr. Gordon Kerr gave evidence for the defendant, the City. Mr. Kerr is Acting Manager for Roads and Drainage North, a position he has held since December 2015 when the former manager retired. Between 2013 and 2015, he was Superintendent for Roads and Drainage.

He has worked for the City since September 1982. He has a staff of 36 people plus 14 students who are employed in the summer months. The incident site at University Drive and 105A Avenue falls within his management. [ 22 ] He said that on October 14, 2014, the City was not doing any work at the incident site. He said that the City’s lawn cutters would have no reason to remove the bollard as they park at another location to unload the equipment.

He said if they had removed the bollard, it would be dragged to the side of the cycle path. [ 23 ] He testified that sometimes bollards or the brass locks securing them are stolen and sold for their metal content. The City has stopped using brass locks in order to make them less attractive to thieves; however, the lock holding the bollard in this instance was made of brass. [ 24 ] If a City employee notices that a bollard is missing, that employee is to put a cone on it and get a bollard from Engineering or Parks through a service request.

The City also relies on the public calling in if something is out of place. Once notified, the City would assign a crew to immediately fix it. [ 25 ] Other utilities, such as fire, police, and TransLink, may have master keys to unlock the bollard. Mr. Kerr said that there is no log of who has access to the lock for the bollard. There is no written procedure for removal of the bollard. [ 26 ] Mr. Kerr went into considerable detail in describing how the City maintains and inspects the roads and sidewalks for which they are responsible. The City is divided into 149 sectors and the incident site is in sector 11.

This area of the City is considered a residential area, not a commercial area. [ 27 ] Under the City’s Engineering Department’s Procedure No. 08-P which is dated January 1, 1992: 1. Curbed streets in residential areas are to be swept twice per year (or on demand, if approved by the appropriate Area Superintendent); 2. Sidewalks in residential areas are to be inspected by an inspector on foot once every year ; 3. Each sector is to be checked four times per year on a set time schedule.

Such checks are to be undertaken from a vehicle and deficiencies within the road right-of-way, boulevards and ditches are to be noted and corrected. 4. Sector checks shall include drainage, roads (everything from signs to potholes to painting), barricades, spills, sidewalks and other unsafe conditions. [ 28 ] Mr. Kerr reviewed the records of the inspections for Sector 11. He noted that the inspections only provide a snap shot at the time of the inspection. The inspections were done as follows: 1. September 5 - 11, 2013 - sidewalk inspection 2. October 8 - 10, 2013 - general sector check 3.

January 13 - 15, 2014 - general sector check

4. March 5, 2014 - walkway inspection 5. April 2014 - sidewalk inspection 6. April 30 to May 1, 2014 - general sector check 7. June 24, 2014 - sidewalk inspection 8. July 15, 2014 - general sector check 9. September 26, 2014 - sidewalk inspection 10. October 8 - 11, 2014 - general sector check [29] It appears from the records provided by the City that the City performed the inspections more regularly than the policydictated. Mr. Kerr said that the sector checkers have been with the City for a significant period of time.

If the inspector sees anythingwrong, they electronically notify the foreman immediately and the foreman sends it to the crew. [30] Mr. Kerr testified that the City tries to mitigate injuries or unsafe conditions to the public by being one step ahead. [31] Mr. Kerr also provided the budget for the inspections and over $214,662 was spent just for the inspections, almost $20,000more than had been budgeted. He said the City has only three inspectors and there are 1930 km of roadways and 681 km of sidewalks inthe City.

He does not believe it is justifiable to have more inspections and the City does not have the resources or the budget to providemore frequent inspections. [32] Mr. Kerr testified he is not aware of any other incidents resulting in injury because of a missing bollard in his area. He also saidthat it is not often that a bollard goes missing. [33] Mr. Kerr was also a knowledgeable and straightforward witness and I accept his evidence fully. Decision [34] I find that Knightley would not have suffered a broken leg but for the existence of the hole in the asphalt where the bollardshould have been. I find that Mr.

Lichy was proceeding with due caution and had Knightley on a leash and under control at all times. Therefore there was no contributory negligence on Mr. Lichy’s part. [35] I find the City owed a duty of care to Mr. Lichy. The cycle path was built and maintained for the purposes of cycling, walkingand skateboarding among other things. It was designed to be used by people residing in or visiting the City. Following the decision ofJust v. British Columbia, (SCC), [1989] 2 S.C.R. 1228; [1989] S.C.J.

No. 121; 1989 CarswellBC 234, paragraph 12, Ifind that the City owed a duty of care to those that use that path, including Mr. Lichy. [36] There was no dispute that Mr. Lichy notified the City in writing of his claim and commenced this action well within thestatutory limits imposed under the Municipal Act. Therefore the next question I must determine is if there is any exemption by way ofpolicy decision-making. [37] Brown v.

British Columbia (Minister of Transportation and Highways) provides helpful guidelines when distinguishingbetween policy and operational decision-making: “In distinguishing what is policy and what is operations, it may be helpful to review some of the relevant factors that should beconsidered in making that determination. These factors can be derived from the following decisions of this Court: Laurentide MotelsLtd. c. Beauport (Ville), (SCC), [1989] 1 S.C.R. 705; Barratt v.

North Vancouver (District), (SCC),[1980] 2 S.C.R. 418; and Just, supra; and can be summarized as follows: True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance betweenefficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints.

The operational area is concerned with the practical implementation of the formulated policies, it mainly covers the performance orcarrying out of a policy. Operational decisions will usually be made on the basis of administrative direction, expert or professionalopinion, technical standards or general standards of reasonableness.” Brown v. British Columbia (Minister of Transportation & Highways) (SCC), 1994 CarswellBC 128, 1994 CarswellBC1236, [1994] 1 S.C.R. 420, [1994] 4 W.W.R. 194, [1994] B.C.W.L.D. 1160, [1994] S.C.J. No. 20, 112 D.L.R. (4th) 1, 164 N.R. 161, 19C.C.L.T. (2d) 268, 20 Admin.

L.R. (2d) 1, 2 M.V.R. (3d) 43, 42 B.C.A.C. 1, 46 A.C.W.S. (3d) 797, 67 W.A.C. 1, 89 B.C.L.R. (2d) 1,J.E. 94-497, EYB 1994-67080 [38] The number of sector inspectors the City hires, the area each inspector must cover and the number of times per year each sectoris inspected on foot of by vehicle all fall within the area of policy decision-making as it concerns budgetary allotments and staffing.

Aslong as the policy decision is made in a bona fide manner and is reasonable in the circumstances, the City is exempted from the tort lawduty of care. [39] I find the policy decision was made in a bona fide manner and was reasonable in the circumstances. Since that is the case, Mr.Lichy must prove on a balance of probabilities that the operational aspect of the City’s activities were negligent. [40] There is no evidence that the City was instrumental in removing the bollard and failing to replace it. Mr. Lichy did not see City

or any work crews at the incident site on October 14, 2014 and Mr. Kerr testified that there had not been a City work crew there at that time. Similarly there is no evidence that the sector inspections were done improperly or carelessly. As Mr. Kerr testified, all the inspections can capture is a snapshot of the conditions of the sidewalks, roads, and signs on the day the inspection took place. There was no evidence that the sector inspection of October 8 to 11, 2014 failed to notice the bollard was missing. [ 41 ] For these reasons, I must dismiss Mr. Lichy’s claim against the City. The Honourable Judge K.J. Ferriss Provincial Court of British Columbia