Just v. British Columbia, (1989) 103 N.R. 1 (SCC)

• Judge: Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 07, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 103 N.R. 1 (SCC);[1990] 1 WWR 385;JE 90-18;18 MVR (2d) 1;[1989] 2 SCR 1228;18 ACWS (3d) 527;[1989] CarswellBC 234;41 Admin LR 161;64 DLR (4th) 689;[1989] ACS no 121;103 NR 1;41 BCLR (2d) 350;1989 CanLII 16 (SCC);1 CCLT (2d) 1;[1989] SCJ No 121 (QL);[1990] RRA 140

Just v. B.C. (1989), 103 N.R. 1 (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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John Just (appellant) v. Her Majesty The Queen In Right Of The Province Of British Columbia (respondent)

(20246)

Indexed As: Just v. British Columbia

Supreme Court of Canada

Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.

December 7, 1989.

Summary:

The plaintiff was seriously injured and his daughter killed when their motor vehicle was struck by a falling rock from the wooded slopes above a provincial highway. The plaintiff brought a negligence action for damages against the province for failing to properly maintain the highway.

The British Columbia Supreme Court dismissed the action. The court held that the decision as to when and how to inspect for falling rocks was a nonreviewable "policy" decision. The court, accordingly, did not determine whether the system of inspection adopted was reasonable or whether it was properly carried out. The plaintiff appealed.

The British Columbia Court of Appeal affirmed the decision. The plaintiff again appealed.

The Supreme Court of Canada, Sopinka, J., dissenting, allowed the appeal. The court held that once a system of inspection was adopted it must be reasonable and properly carried out. Whether an inspection was reasonable and properly carried out was not "policy". The court ordered a new trial to determine whether the province was negligent.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Bars or exclusions - "Policy" decisions - The Supreme Court of Canada stated that "as a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions" - See paragraph 28.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Bars or exclusions - "Policy" decisions - The Supreme Court of Canada stated that "as a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that a duty of care is owed by the government agency and no exemption by way of statute or policy decision-making is found to exist, a traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered. The manner and quality of an inspection system is clearly part of the operational aspect of a governmental activity and falls to be assessed in the consideration of the standard of care issue" - See paragraphs 29 to 30.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Bars or exclusions - "Policy" decisions - [See Municipal Law - Topic 1736 below].

Municipal Law - Topic 1736

Liability of municipalities - Highways - Dangerous highway conditions - Falling rocks - The province adopted a system for visually inspecting rock slopes above highways, with further inspections where additional safety measures were warranted - The plaintiff's motor vehicle was struck by a falling rock - The province defended a negligence action on the basis that the decision to adopt an inspection system was a "policy" decision that was not reviewable by the courts - The Supreme Court of Canada held that the frequency and manner in which inspections were carried out was an operational aspect of a governmental activity, not a nonreviewable policy decision - The court stated that once the policy was adopted, the province was liable if the inspection system was not reasonable or was carried out improperly.

Cases Noticed:

Anns v. Merton London Borough Council, [1978] A.C. 728, consd. [para. 11].

Nielsen v. Kamloops, City of, and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 11].

Laurentide Motels Ltd. v. Beauport (Ville) et al., [1989] 1 S.C.R. 705; 94 N.R. 1; 23 Q.A.C. 1, refd to. [para. 11].

Yuen Kun Yeu v. Attorney General of Hong Kong, [1988] A.C. 175 (P.C.), refd to. [para. 11].

Barratt v. North Vancouver, Municipality of, [1980] 2 S.C.R. 418; 33 N.R. 293, refd to. [para. 15].

Blessing v. United States, 447 F.S. 1160, refd to. [para. 17].

Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 (Aust. H.C.), consd. [para. 19].

Indian Towing Co., Re (1955), 350 U.S. 61, refd to. [para. 23].

United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) (1984), 467 U.S. 797, refd to. [para. 24].

London Passenger Transport Board v. Upson, [1949] A.C. 155, refd to. [para. 43].

Kent v. East Suffolk Rivers Catchment Board, [1940] 1 K.B. 319, refd to. [para. 44].

Statutes Noticed:

Crown Proceeding Act, R.S.B.C. 1979, c. 86, sect. 2(c), sect. 3(2) [para. 14].

Highway Act, R.S.B.C. 1979, c. 167, sect. 8 [para. 14].

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

Authors and Works Noticed:

Holding, John D., The Relationship Between Recent Trends in Tort Litigation and the Current Insurance Crisis in Canada (1986), 54 Assurances 435 [para. 40].

Klar, Lewis, Negligence - Reactions Against Alleged Excessive Imposition of Liability - A Turning Point? (1987), 66 Can. Bar Rev. 159 [para. 40].

Ontario Task Force Final Report to the Ministry of Financial Institutions on Insurance (1986) [para. 38].

Rea, Samuel A., Economic Perspectives on the Liability Insurance Crisis, in Insurance Law, Special Lectures of the Law Society of Upper Canada (1987) [para. 40].

Stradiotto, Rino A., Canadian Perspectives on Tort Law: Personal Injury Damages (1988), 46 The Advocate 737 [para. 40].

Trebilcock, Michael J., The Insurance-Deterrence Dilemma of Modern Tort Law: Trends in North American Tort Law and their Implications for the Current Liability Crisis (1986) [para. 38].

Counsel:

T.R. Berger and J.N. Laxton, Q.C., for the appellant;

William A. Pearce and Harvey M. Groberman, for the respondent.

Solicitors of Record:

Laxton, Pidgeon & Co., Vancouver, British Columbia, for the appellant;

Attorney General of British Columbia, Victoria, British Columbia, for the respondent.

This appeal was heard on February 24, 1989, before Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ., of the Supreme Court of Canada.

On December 7, 1989, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé and Gonthier, JJ., concurring) - see paragraphs 1 to 36;

Sopinka, J., dissenting - see paragraphs 37 to 54.