If you are injured because of a slip and fall on ice on private property, you may have an injury claim against the occupier of the property for breaching the duty of care for failing to keep the area reasonably safe from hazards (ice). Who the occupier is will depend on the circumstances. An occupier is typically the owner or the tenant who has responsibility and control over the premises.

The rules are different if you slip and fall on public property, such as a city sidewalk or a city parking lot. A duty of care is not owed to the public by municipalities in the same way there is a duty of care owed by private property owners. Instead, municipalities do not owe a duty of care if its actions which caused the injury were based upon a policy decision. Decisions concerning budgetary allotments for departments or government agencies are generally considered policy decisions. The manner in which roads and sidewalks are maintained (such as snow and ice removal) are generally viewed as policy decisions.

In Lowe v. Sidney (Town of) 2020 BCSC 335, the injured claimant slipped and fell on black ice in a city parking lot causing her to suffer a fractured wrist and a tear in her shoulder. The city bought an application to dismiss the claim arguing that it did not owe the injured claimant a duty of care and that it was not responsible for her injuries because the decision not to inspect or clear the parking lot of ice at the time the injury occurred was a policy decision.

The trial judge agreed with the municipality and dismissed the injured claimant’s claim stating:

[29] The defendant submits that it is exempt from owing a duty of care to the plaintiff because its actions were in keeping with the Policy, which was put in place bona fide and in good faith based on, among other things, the availability of manpower, equipment, and budgetary constraints. 

[30]         The plaintiff submits that the classification of the Lot as a low priority area was not a bona fide policy because the Lot was along the defendant’s priority routes and could easily have been inspected with little to no extra effort.

[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.

[32]         I also find the policy decision to be reasonable.  It is one thing for priority areas to be inspected and sanded.  To require as a matter of policy that those involved in the inspection of priority areas, at the same time, divert their attention to and engage in an inspection of areas considered low priority is illogical and inconsistent with reasonable resource allocation and prudent policy-making.  In my view, the Policy was bona fide.

[33]         The plaintiff submits that, regardless whether the Policy was bona fide, the defendant’s “decision not to have the Lot inspected … and to prioritize other areas for inspection and sanding” [emphasis added] was operational in nature.  However, the evidence does not suggest that a “decision” was made.  Rather, the defendant simply implemented the Policy and the operational steps it took that morning did not require any discretionary decisions related to the non-priority areas.  Therefore, the plaintiff’s complaint in this regard relates to the Policy itself, not the manner in which it was carried out. 

[34]         The defendant carried out the Policy.  It received a notification from the RCMP and responded to it as per the Policy.  There was no extreme weather event that morning.  Indeed, based upon the evidence, as weather events go, the one in question was, at best, benign.  The defendant received no complaints regarding the Lot or any other area which should have prompted it to take action.  Therefore, the Policy dictated that the Lot was a low priority and would only be tended to following a specific complaint.  The defendant’s staff who were responsible for implementing the Policy reasonably determined that full scale inspection and/or sanding of the defendant’s facilities was not necessary.  The evidence is that none of the defendant’s employees who were dispatched to sand or salt the areas that were considered priority areas saw any icy conditions.  The plaintiff’s own evidence corroborates their observations.

[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.

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