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Municipal policy defence prevails in parking lot slip and fall case

Aron Bookman and Annie Olson of Carfra Lawton were successful in having the Plaintiff’s claim dismissed on summary trial in Lowe v Sidney (Town of), 2020 BCSC 335.

In Lowe, the plaintiff slipped on what she believed to be black ice on a cool December morning while walking across a public parking lot owned by the Town of Sidney. She claimed that Sidney was negligent in failing to inspect and sand the parking lot and alleged that had it done so, she would not have slipped.

On the morning of the plaintiff’s slip, temperatures hovered between -2 to -3 degrees Celsius and there had been a mix of rain and snow the night before. A Sidney crewmember had been out from approximately 3:00 a.m. to 5:00 a.m. inspecting the roads in response to a message from the RCMP that said the “roads were getting icy”. The message, however, referred to the neighbouring municipality of North Saanich rather than Sidney.

The crewmember did not observe any ice on the roads during this early morning inspection, but laid precautionary salt intermittently throughout Sidney. At 7:30 a.m. the Sidney public works employees began their shifts and the crewmember instructed them to distribute sand throughout certain areas, which did not include the parking lot where the plaintiff slipped. The plaintiff slipped at approximately 8:45 a.m.

Sidney relied primarily on its Risk Management Policy, which provided for salting, sanding and/or ploughing on a priority basis, in response to an extreme weather event, a notification from the RCMP, a complaint or an observation of ice by a crewmember. Pursuant to the Policy, some areas of the Sidney are considered priorities (such as emergency routes and high-traffic areas) while others, including the parking lot where the plaintiff slipped, are not. It is a recognized principle in law that municipalities cannot be held liable for decisions they make that are dictated by financial, economic, and budgetary constraints, otherwise known as “policy decisions”.

In dismissing the plaintiff’s claim, Justice G.C. Weatherill wrote:

[31] I am satisfied on the evidence presented by the defendant that the Policy was dictated by financial, economic, and budgetary constraints. It was a proper exercise of discretion. Included in the Policy was the determination that the defendant’s six public parking lots were areas of low priority for snow and ice inspection and control, in the absence of a particular complaint or extreme weather event. This was a resource allocation decision and, thus, an unassailable policy decision.

[35]        There is no evidence that the defendant’s snow and ice response that morning was unreasonable or demonstrated a lack of appreciation for public risk.  Mr. Kimber was working within the Policy when he dispatched his workers to perform salting and sanding to the areas that were done.
[36]        I find that the defendant has a complete defence to this action because the decisions it made during the morning in question regarding ice control were policy decisions, not operational decisions.

Justice G.C. Weatherill went on to write that, even if Sidney’s failure to inspect the parking lot was not a policy decision, the plaintiff had failed to prove that Sidney would have seen the alleged ice at all. This he found particularly true given that the plaintiff herself had not seen the alleged ice before she slipped on it.

Case summary by Annie Olson