Brown v. British Columbia (Minister of Transportation and Highways)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Citation: (1994), 164 N.R. 161 (SCC),[1994] CarswellBC 1236,[1994] 1 SCR 420,[1994] SCJ No 20 (QL),164 NR 161,1994 CanLII 121 (SCC),46 ACWS (3d) 797,112 DLR (4th) 1,20 Admin LR (2d) 1,JE 94-497,42 BCAC 1,19 CCLT (2d) 268,2 MVR (3d) 43,89 BCLR (2d) 1,[1994] 4 WWR 194,[1994] ACS no 20
• Date: 17 March 1994

Brown v. B.C. (1994), 164 N.R. 161 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Montague Brown (appellant) v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Transportation and Highways (respondent) and the Attorney General of Canada (intervener)

(22946)

Indexed As: Brown v. British Columbia (Minister of Transportation and Highways)

Supreme Court of Canada

La Forest, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci and Major, JJ.

March 17, 1994.

Summary:

A motorist was injured when his vehicle skidded on an icy patch of highway and went over an embankment. The motorist sued the Province of British Columbia for damages on the ground it breached its duty of care in failing to ensure that the highway was properly maintained.

The British Columbia Supreme Court, in a judgment reported at 17 M.V.R.(2d) 69, dismissed the action. The motorist appealed.

The British Columbia Court of Appeal, in a decision reported at 10 B.C.A.C. 303; 21 W.A.C. 303, dismissed the appeal. The motorist appealed.

The Supreme Court of Canada dismissed the appeal.

Crown - Topic 1645

Torts by and against Crown - Action against Crown - Bars or exclusions - "Policy" decisions - The Supreme Court of Canada noted that the protection afforded "policy" decisions was not absolute - The court stated that "[i]t will always be open to a plaintiff to attempt to establish, on a balance of probabilities, that the policy decision was not bona fide or was so irrational or unreasonable as to constitute an improper exercise of governmental discretion. This is not a new concept. It has long been recognized that government decisions may be attacked in those rela­tively rare instances where the policy decision is shown to have been made in bad faith or in circumstances where it is so patently unreasonable that it exceeds gov­ernmental discretion" - See paragraph 23.

Crown - Topic 1645

Torts by and against Crown - Action against Crown - Bars or exclusions - "Policy" decisions - What constitutes - A motorist was involved in an accident caused by black ice - Despite falling temperatures during the preceding days, the province had declined to change the schedule governing the hours worked by the maintenance crews from the summer to the winter schedule - The moto­rist sued the prov­ince in negligence claim­ing it had erred in failing to transfer the maintenance crews to the winter sche­dule - The prov­ince submitted that the decision was a policy matter and as such, immune from liability - The Supreme Court of Canada held that the decision was a matter of policy and exempt from liabil­ity - See paragraphs 33 and 34.

Crown - Topic 1645

Torts by and against Crown - Action against Crown - Bars or exclusions - "Policy" decisions - [See first Municipal Law - Topic 1730 ].

Municipal Law - Topic 1697

Liability of municipality - Liability limited to misfeasance - A motorist was involved in an accident caused by black ice - The motorist sued the province claiming it had failed to ensure that the road would be sanded as required - The prov­ince sub­mitted that Crown liability could only arise from acts of misfeasance and not of non-feasance - The Supreme Court of Canada stated "that any distinction between negli­gence founded on misfeasance or non-feasance will often be unnecessary or inappropriate. More im­portantly, as long ago as 1885, this court in Town of Port­land v. Griffiths (1885), 11 S.C.R. 333, held that a statute which placed public streets and highways under the control of a municipality imposed upon that munici­pality the duty of keeping them in repair" - See paragraph 30.

Municipal Law - Topic 1730

Liability of municipality - Highways - Dangerous highway conditions - Standard of care - Icy roads - The RCMP con­tacted the Department of Transportation and High­ways concerning the need for highway sanding - Because that district was still on the summer schedule, no one was on duty that day - A motorist's vehicle left the highway - The motorist sued the province for dam­ages - The motorist sub­mitted that the decision to remain on the sum­mer schedule despite falling temperatures con­stituted negligence whether it was con­sidered as either a policy deci­sion or an operational decision - The province sub­mitted the decision involved a matter of policy and was exempt from liability - The Supreme Court of Canada held that the decision was exempt from liability as a policy decision - See paragraphs 33 and 34.

Municipal Law - Topic 1730

Liability of municipality - Highways - Dangerous highway conditions - Standard of care - Icy roads - The RCMP con­tacted the Department of Transportation and High­ways concerning the need for highway sanding - Because that district was still on the summer schedule, no one was on duty - Further­more, the department could not contact the on-call employee because it did not have his home telephone number - A motorist's vehicle left the highway - The motorist sued the province for dam­ages - The motorist sub­mitted that the department was negligent in not being able to contact the on-call employee - The province sub­mitted that even had the em­ployee's tele­phone number been avail­able, there was insufficient time for him to reach the scene of the accident - The Supreme Court of Canada affirmed the decision to dis­miss the action - See para­graphs 37 to 41.

Municipal Law - Topic 1805

Liability of municipality - Negligence - Standard of care - Maintenance of streets and highways - A motorist was involved in an accident caused by black ice on the high­way - The motorist sued the province in negli­gence for dam­ages on the ground the province failed to take proper measures to ensure the high­way was safe - The prov­ince submitted that decisions regarding staffing and the hours of operation for highway mainten­ance was a policy matter and as such, exempt from liability - The Supreme Court of Canada, in the course of deter­mining the issue of liability, held that the duty of care resting on the province to reasonably maintain the provincial high­ways extended to the pre­vention of injury to users of the road in icy conditions - See paragraph 28.

Municipal Law - Topic 1817

Liability of municipality - Negligence - Defences - Statutory immunity or exemp­tion - A motorist was involved in an accident caused by black ice - The motor­ist sued the province claiming it had failed to ensure that the road would be sanded as required - The prov­ince sub­mitted that, inter alia, it was granted immun­ity from liability under s. 8 of the Occu­piers' Lia­bility Act and under s. 3(2)(f) of the Crown Proceeding Act - The Supreme Court of Canada held that neither statute granted immunity to the Crown from actions arising from failure to adequately maintain highways - See paragraphs 31 and 32.

Cases Noticed:

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 64 D.L.R.(4th) 689; 41 B.C.L.R.(2d) 350, appld. [para. 1].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 10 D.L.R.(4th) 641; 29 C.C.L.T. 97; 8 C.L.R. 1, appld. [para. 23].

Portland (Town) v. Griffiths (1885), 11 S.C.R. 333, appld. [para. 30].

Laurentide Motels Ltd. et al. c. Beauport (Ville) et al., [1989] 1 S.C.R. 705; 94 N.R. 1; 23 Q.A.C. 1, appld. [para. 33].

Barratt v. North Vancouver (Municipality), [1980] 2 S.C.R. 418; 33 N.R. 293; 27 B.C.L.R. 182; 114 D.L.R.(3d) 577; 8 M.V.R. 294; 14 C.C.L.T. 169; 13 M.P.L.R. 116, appld. [para. 33].

Swinamer v. Nova Scotia (Attorney Gen­eral) (1994), 163 N.R. 291 (S.C.C.), refd to. [para. 42].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492; [1977] 2 W.L.R. 1024; [1978] A.C. 728 (H.L.), refd to. [para. 43].

United States v. Gaubert (1991), 111 S.Ct. 1267, refd to. [para. 44].

Rowling v. Takaro Properties Ltd., [1988] A.C. 473; [1988] 1 All E.R. 163 (P.C.), refd to. [para. 44].

Sutherland Shire Council v. Heyman (1985), 157 C.L.R. 424 (H.C.), refd to. [para. 44].

Statutes Noticed:

Crown Proceeding Act, R.S.B.C. 1979, c. 86, sect. 2(c), sect. 3(2)(f) [para. 26].

Highway Act, R.S.B.C. 1979, c. 167, sect. 8 [para. 26].

Ministry of Transportation and Highways Act, R.S.B.C. 1979, c. 280, sect. 14 [para. 26].

Occupiers' Liability Act, R.S.B.C. 1979, c. 303, sect. 8 [para. 29].

Authors and Works Noticed:

Bailey, S.H., and M.J. Bowman, The Policy/Operational Dichotomy - A Cuckoo in the Nest, [1986] Cambridge L.J. 430, generally [para. 44].

Cohen, D. and J.C. Smith, Entitlement and the Body Politic: Rethinking Negligence in Public Law (1986), 64 Can. Bar Rev. 1, generally [para. 44].

Klar, L.N., The Supreme Court of Canada: Extending the Tort Liability of Public Authorities (1990), 28 Alta. L. Rev. 648, p. 655 [para. 44].

Perell, P.M., Negligence Claims Against Public Authorities (1994), 16 Advocates' Q. 48, p. 57 [para. 44].

Smillie, J.A., Liability of Public Author­ities for Negligence (1985), 23 U.W.O.L. Rev. 213, generally [para. 44].

Woodall, M.K., Private Law Liability of Public Authorities for Negligent Inspec­tion and Regulation (1992), 37 McGill L.J. 83, generally [para. 44].

Counsel:

John N. Laxton, Q.C., and Robert D. Gib­bens, for the appellant;

William A. Pearce, Q.C., and Thomas H. MacLachlan, for the respondent;

Ivan G. Whitehall, Q.C., and Donald J. Rennie, for the intervener.

Solicitors of Record:

Laxton & Company, Vancouver, British Columbia, for the appellant;

The Ministry of the Attorney General, Victoria, British Columbia, for the respondent;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the intervener.

This appeal was heard on November 8, 1993, by La Forest, So­pinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The decision of the court was delivered in both official languages on March 17, 1994, when the following opin­ions were filed:

Cory, J. (Gonthier, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 41;

McLachlin, J. - (La Forest, J., concur­ring) - see paragraph 42;

Sopinka, J. - see paragraphs 43 to 46.