New Pyke Decision May Create Uncertainty For Municipal Statutory Defences

• Published date: 20 April 2022
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Mr Drew Wilson ( Brownlee LLP)

Introduction

Certain sections of the Municipal Government Act¹ place legal duties on municipalities, while other sections provide them with broad defences. These sections occasionally conflict, but previous judicial decisions have tended to favour applying statutory defences broadly to immunize municipalities from liability.²

However, the recent Alberta Court of Queen's Bench decision in Pyke³ has taken a different course and narrowed the application of these statutory defences, especially section 530 of the Municipal Government Act.

As a result, Pyke may unsettle the law on municipal statutory defences, until more litigation answers the issues that Pyke has raised.

Background'In Winter, Truck Struck Highway Median, Launching over It

In February 2014, the plaintiff (the defendant in the original lawsuit) was travelling on a busy highway located within the City of Calgary. The highway was divided by a barrier that sat on a curb. Tragically, the plaintiff lost control of her pickup truck due to black ice and collided with the curb, causing her vehicle to launch over the barrier, and collide with an oncoming car.

The parties applied for a judicial determination about whether the City should bear any liability for the Accident.

The plaintiff argued the City bore some liability for the highway failing to meet applicable engineering standards and for failing to keep the highway in a reasonable state of repair, in breach of section 532 of the Municipal Government Act. Section 532 of the Municipal Government Act places a duty on municipalities to keep "every road or other public place" under its direction in a reasonable state of repair. Section 532(6) states a municipality is only liable under section 532 if it knew (or should have known) of the state of repair.

The City argued it did not bear any liability, relying on the 10-year limitation period in the Limitations Act⁴ and statutory defences found in the Municipal Government Act (sections 530, 532(6) and 533).

The Barrier Was of Negligent Design

The Court relied heavily on the evidence of the plaintiff's expert witness, Dr. John Morrall, who concluded the barrier and curb did not meet the accepted standard when built (1987), because the barrier was placed on and behind the curb. Traffic barriers should not sit behind a curb, and certainly no more than 20 mm from the curb. Here, the barrier was in the middle of the curb, 177 cm away from the edge.

Placing the barrier on the curb constituted deficient design...