Judge Strikes Out Claim Against Municipality Based On MGA Defences

• Published date: 01 March 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Professional Negligence, Real Estate
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Mr Mark Hein (Brownlee LLP)

A new case from the Alberta Court of Queen's Bench adds another sliver of certainty for municipalities relying on liability protections in the Municipal Government Act ("MGA").

Factual Background:

The case Pecanac v Camrose (City), 2021 ABQB 15 arises from a slip and fall accident that occurred at approximately 5:45am on February 17, 2017 in the City of Camrose, Alberta. The Plaintiff was walking to work when she slipped and fell on an icy patch, fracturing her L1 vertebrae and left arm, which required surgery to insert wires and pins.

Weather records indicate that there had been a freeze/thaw cycle in the week leading up to the Accident and that on the evening prior to her fall, there had been some mixed drizzle/snow precipitation that had occurred. As the Plaintiff took her usual walking route to work she found that a particular section of the sidewalk, where it crosses a laneway, to be impassable due to ice and snow. She decided to step into the laneway, which is where she slipped.

The City applied for summary judgment, relying on section 530 of the MGA, which protects it from liability arising from decisions on how and when to conduct inspections and maintenance, as well as s. 531, which states that a municipality can only be liable for damages caused by snow, ice or slush on roads or sidewalks if they are grossly negligent.

The City brought evidence showing that they had a three-tiered policy for when roads and sidewalks would be cleared of ice and snow, all based on use. Residential roads and lanes would be cleared at the discretion of the Director of Public Works, where the road or lane was at risk of becoming impassable. Sidewalks adjacent to City property would generally be cleared within 48 hours of a storm, but other residential sidewalks had no timeline associated to them.

Most importantly, the City's policy did not include any requirement for City crews to perform spot checks outside of normal work hours. City crews finish their day at 5pm and start their day at 8am, so regardless of the rest of the policy, it would have been impossible for the City to have known about any potential hazards.

The Justice reviewed case law regarding gross negligence in the context of municipal snow removal and found that the following elements are common where gross negligence is found:

• The danger posed by the hazard is obvious;
• There is a persistent presence of the danger in that it must exist for at least some period of time;
• There is...