Heavy snow fall forced Just and his daughter to stop in a line of traffic by a rocky slope on a major highway. A boulder, which worked loose from the wooded slopes above the highway, came crashing down on the appellant's car, killing the appellant's daughter and causing him very serious injuries. Just brought an action against the provincial government contending that the government negligently failed to properly maintain the highway.
The Department of Highways had set up a system for inspection and remedial work upon rock slopes. Inspection and recommendations were made by engineers and the work was effected by a rock scaling crew responsible for performing remedial work throughout the entire province. The department's practice had been to make visual inspections from the highway unless rock falls or a history of instability in an area indicated a need for the rock engineer to climb the slope. Numerous informal inspections were carried out by highway personnel as they drove along the road.
The trial judge found that the entire system of inspection and the way it was implemented was a policy matter which did not give rise to liability. No finding was made as to whether or not the system of inspection was reasonable or whether the inspections themselves were properly carried out. The Court of Appeal upheld the finding of the trial judge and Just appealled to the Supreme Court.
- Is the government under a duty of care to maintain the highways and if so, are they liable if the highways are not sufficiently maintained?
Appeal allowed, new trial ordered.
Cory, writing for the majority, held that the province owes a duty of care, which ordinarily extends to their reasonable maintenance, to those using its highways. The Department of Highways could readily foresee the risk that harm might befall users of a highway if it were not reasonably maintained. That maintenance could be found to extend to the prevention of injury from falling rock.
Government agencies may be exempt from the application of the traditional tort law duty of care if an explicit statutory exemption exists or if the decision arose as a result of a policy decision. Whether or not a decision is characterized as a policy decision or as an operational decision rests on the nature of the decision and not on the identity of the actors. Generally, decisions concerning budgetary allotments for departments or government agencies should be classified as policy decisions. A policy decision may be 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 (as per Anns v Merton London Borough Council) and the issue of standard of care required of the government agency must next be considered. The manner and quality of an inspection system, since it was clearly part of the operational aspect of a governmental activity, should be assessed when consideration is given to the standard of care issue. At this stage, the requisite standard of care must be assessed in light of all the surrounding circumstances including budgetary restraints and the availability of qualified personnel and equipment.
Sopinka, in the dissent, held that the government had the power to carry out the inspections but was under no duty to do so. Conduct within the limits of this discretion gives rise to no duty of care; conduct outside of these limits may attract a private law duty of care.
A litigant may not attack a policy and it is not appropriate for a Court to pass on it, absent evidence that a policy was adopted for some ulterior motive and not for a municipal purpose. In order for a private duty to arise, it would have to be shown that the Rockwork Section acted outside its delegated discretion to determine whether to inspect and the manner in which the inspection is to be made. Policy decisions are immune from review because they usually entail not only a decision to do something but also some call upon the public purse. The government was acting within its discretion when it decided that inspections should be done and the manner in which they were to be done. Responsibility for deciding the extent to which the inspection program was to be implemented was delegated to the Rockwork Section.
- The duty of care should apply to a public authority unless there is a valid basis for its exclusion.
- Policy decisions – the decision by the government about what acts to perform under a given statute – are exempt from liability; operational decisions – the decision by the government about how to perform those acts once they have been decided - are not exempt from liability.