Just v. British Columbia

Just v. British Columbia
Collection
Supreme Court Judgments
Date
1989-12-07
Report
[1989] 2 SCR 1228
Case number
20246
Judges
Dickson, Robert George Brian; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
British Columbia
Subjects
Torts
Notes
SCC Case Information: 20246
Decision Content
Just v. British Columbia, [1989] 2 S.C.R. 1228
John Just Appellant
v.
Her Majesty The Queen in right of
the Province of British Columbia Respondent
indexed as: just v. british columbia
File No.: 20246.
1989: February 24; 1989: December 7.
Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for british columbia
Torts -- Liability -- Government -- Policy decision or operational decision -- Boulder crashing onto car on highway -- System in place for inspection and remedial work on rock slopes -- Whether or not parties in relationship of sufficient proximity to warrant imposition of duty of care -- If so, whether policy decision to which liability does not attach or operation decision to which liability would attach -- Highway Act, R.S.B.C. 1979, c. 167, ss. 8, 14 -- Crown Proceeding Act, R.S.B.C. 1979, c. 86, ss. 2, 3.
Heavy snow fall forced appellant 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 upon appellant's car, killing appellant's daughter and causing him very serious injuries. Appellant contended that respondent 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.
Held (Sopinka J. dissenting): The appeal should be allowed.
Per Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.: 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 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. In this case a new trial was necessary to make the necessary findings of fact on the negligence issue.
Per Sopinka J. (dissenting): Respondent 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.
The respondent's liability, pursuant to the Crown Proceeding Act, was no greater than that of a municipality. A municipality has, within its statutory discretion, the authority to maintain highways but no duty to do so. 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. Respondent 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.
Cases Cited
By Cory J.
Applied: Anns v. Merton London Borough Council, [1978] A.C. 728; City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Yuen Kun Yeu v. Attorney‑General of Hong Kong, [1988] A.C. 175; Barratt v. District of North Vancouver, [1980] 2 S.C.R. 418; Blessing v. United States, 447 F.S. 1160; Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1; Indian Towing Co., 350 U.S. 61 (1955); United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984).
By Sopinka J. (dissenting)
City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; London Passenger Transport Board v. Upson, [1949] A.C. 155; Barratt v. District of North Vancouver, [1980] 2 S.C.R. 418; Kent v. East Suffolk Rivers Catchment Board, [1940] 1 K.B. 319; Anns v. Merton London Borough Council, [1978] A.C. 728.
Statutes and Regulations Cited
Crown Proceeding Act, R.S.B.C. 1979, c. 86, ss. 2, 3(2).
Federal Tort Claims Act, 28 U.S.C. {SS} 2680.
Highway Act, R.S.B.C. 1979, c. 167, s. 8.
Ministry of Transportation and Highways Act, R.S.B.C. 1979, c. 280, s. 14.
Municipal Act, R.S.B.C. 1960, c. 255, s. 513(2).
Authors Cited
Holding, John D. "The Relationship Between Recent Trends in Tort Litigation and the Current Insurance Crisis in Canada" (1986), 54 Assurances 435.
Klar, Lewis. "Negligence -- Reactions Against Alleged Excessive Imposition of Liability -- A Turning Point?" (1987), 66 Can. Bar Rev. 159.
Ontario. Ontario Task Force on Insurance. Final Report of the Ontario Task Force on Insurance. Toronto: The Task Force, 1986.
Osborne, Philip. "A Critical Evaluation of Liability Insurance, Litigation and Personal Injury Compensation: The Lessons and Choices for Ontario." Study prepared for the Ontario Task Force on Insurance and cited in Final Report of the Ontario Task Force on Insurance. Toronto: The Task Force, 1986.
Rea, Samuel A., Jr. "Economic Perspectives on the Liability Insurance Crisis," in Insurance Law. Special Lectures of the Law Society of Upper Canada, 1987. Don Mills, Ont.: De Boo, 1987.
Stradiotto, Rino A. "Canadian Perspectives on Tort Law: Personal Injury Damages" (1988), 46 The Advocate 737.
Trebilcock, Michael J. "The Insurance -- Deterrence Dilemma of Modern Tort Law: Trends in North American Tort Law and Their Implications for the Current Liability Crisis." Study prepared for the Ontario Task Force on Insurance and cited in Final Report of the Ontario Task Force on Insurance. Toronto: The Task Force, 1986.
APPEAL from a judgment of the British Columbia Court of Appeal (1986), 10 B.C.L.R. (2d) 223, [1987] 2 W.W.R. 231, 40 C.C.L.T. 160, 1 M.V.R. (2d) 357, dismissing an appeal from a judgment of McLachlin J. (1985), 64 B.C.L.R. 349, [1985] 5 W.W.R. 570, 33 C.C.L.T. 49, 34 M.V.R. 124. Appeal allowed, Sopinka J. dissenting.
T. R. Berger and J. N. Laxton, Q.C., for the appellant.
William A. Pearce and Harvey M. Groberman, for the respondent.
//Cory J.//
The judgment of Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by
CORY J. -- This appeal puts in issue the approach that should be taken by courts when considering the liability of government agencies in tort actions.
Factual Background
On the morning of January 16, 1982, the appellant and his daughter set out, undoubtedly with high hopes and great expectations, for a day of skiing at Whistler Mountain. As a result of a heavy snow fall they were forced to stop in the northbound line of traffic on Highway 99. While they were waiting for the traffic to move forward a great boulder weighing more than a ton somehow worked loose from the wooded slopes above the highway and came crashing down upon the appellant's car. The impact killed the appellant's daughter and caused him very serious injuries. He then brought this action against the respondent contending that it had negligently failed to maintain the highway properly.
Highway 99 is a major commuter road between Vancouver and the major ski resorts located at Whistler Mountain. The appellant alleged that there had been earlier rock falls near the scene of the tragedy. As well it was said that the climatic conditions of freezing and thawing, coupled with a heavy build-up of snow in the trees and resulting tree damage created a great risk of rock falls. Trees were said to be a well-known factor in levering rocks loose. It was contended that inadequate attention had been given to all these factors by the respondent and that a reasonable inspection would have demonstrated that the rock constituted a danger to users of the highway.
At the time of the accident the Department of Highways had set up a system for inspection and remedial work upon rock slopes particularly along Highway 99. At the apex of the organization was a Mr. Eastman, the regional geotechnical material engineer. He is a specialist in rock slope maintenance and together with another engineer was responsible for inspecting rock slopes and making recommendations regarding their stability.
The Department contained a rock work section which included Mr. Oliver, the rock work engineer responsible for rock stabilization and inspections on Highway 99. The section also included a rock scaling crew which was formed in 1971 to perform remedial work on the slopes. This crew serviced the entire province. The crew's function was to remove potentially dangerous rocks by prying them loose using a crowbar. As well, they removed trees that were considered a hazard to the safety of those using the highways. Mr. Oliver was required to inspect rock cut areas to assess the stability of the slope and to determine whether there was a risk that a rock might fall on the highway. His inspection duties extended to the entire slope from which such a danger might arise.
When the rock work engineer inspected the rock slopes on Highway 99 he would report his findings and recommendations to the district highways manager responsible for the area. The district manager in turn through the regional geotechnical material engineer submitted requests for the services of the rock scaling crew. The rock scaling crew itself had no discretion as to where and when it worked; its schedule was determined by the requests for remedial work made to the rock work section.
Prior to the accident the practice had been for the Department of Highways to make visual inspections of the rock cuts on Highway 99. These were carried out from the highway unless there was evidence or history of instability in an area in which case the rock engineer would climb the slope. In addition there were numerous informal inspections carried out by highway personnel as they drove along the road when they would look for signs of change in the rock cut and for rocks in the ditch.
Decisions at Trial and on Appeal
In the reasons of the trial judge (1985), 64 B.C.L.R. 354, the term "rock scaling crew" is used to refer to the rock work section. In any event it was found at p. 354 that:
. . . the rock scaling crew had virtually an absolute discretion as to when and where it would work. It created the standards and it determined their enforcement. Its discretion went far beyond the limited operational discretion of how to go about enforcing policies set by others. In effect, the Department of Highways had conferred upon the rock scaling crew the responsibility of formulating policy with respect to the prevention of rock falls on highways.
The reasons continued with the finding that there were no standards to which the rock scaling crew was required to work or against which its conduct could be evaluated as that determined its own standards. It was found that the decision as to what inspection was to be undertaken on a particular site was a "policy" decision. The conclusion was set out at p. 355 in these words:
The number and quality of inspections as well as the frequency of scaling and other remedial measures were matters of planning and policy involving the utilization of scarce resources and the balancing of needs and priorities throughout the province. Decisions of that nature are for the governmental authorities, not the courts.
No finding was made as to whether or not the system of inspection set forth by the Department of Highways was a reasonable one or whether the inspections themselves were properly carried out. Rather, as indicated, it was found that the entire system of inspection as well as the way in which it was carried out was a matter of planning and policy for which there was no liability.
The Court of Appeal (1986), 10 B.C.L.R. (2d) 223, determined that the trial judge had considered the proper indicia in determining that the number and quality of decisions as to the inspections and the decisions as to the work to be done on a particular site were matters of policy, as opposed to an operational decision. That court upheld the finding of the trial judge that the decisions involved in this case constituted a policy decision for which there was no liability rather than the implementation of policy. The appeal was dismissed without calling upon the respondent.
Test to be Applied
In cases such as this where allegations of negligence are brought against a government agency, it is appropriate for courts to consider and apply the test laid down by Lord Wilberforce in Anns v. Merton London Borough Council, [1978] A.C. 728. At pages 751-52 he set out his position in these words:
Through the trilogy of cases in this House -- Donoghue v. Stevenson [1932] A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter -- in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht case [1970] A.C. 1004, per Lord Reid at p. 1027. [Emphasis added.]
That test received the approval of the majority of this Court in City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2. As well it was specifically referred to by both Beetz and L'Heureux-Dubé JJ. in Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705. It may be that the two-step approach as suggested by Lord Wilberforce should not always be slavishly followed. See Yuen Kun Yeu v. Attorney-General of Hong Kong, [1988] A.C. 175 (P.C.), at pp. 190, 191, 194. Nevertheless it is a sound approach to first determine if there is a duty of care owed by a defendant to the plaintiff in any case where negligent misconduct has been alleged against a government agency.
In the case at bar the accident occurred on a well used major highway in the Province of British Columbia. All the provinces across Canada extol their attributes and attractions in the fierce competition for tourist business. The skiing facilities at Whistler are undoubtedly just such a magnificent attraction. It would be hard to imagine a more open and welcoming invitation to use those facilities than that extended by the provincial highway leading to them. In light of that invitation to use both the facilities and the highway leading to them, it would appear that apart from some specific exemption, arising from a statutory provision or established common law principle, a duty of care was owed by the province to those that use its highways. That duty of care would extend ordinarily to reasonable maintenance of those roads. The appellant as a user of the highway was certainly in sufficient proximity to the respondent to come within the purview of that duty of care. In this case it can be said that it would be eminently reasonable for the appellant as a user of the highway to expect that it would be reasonably maintained. For the Department of Highways it would be a readily foreseeable risk that harm might befall users of a highway if it were not reasonably maintained. That maintenance could, on the basis of the evidence put forward by the appellant, be found to extend to the prevention of injury from falling rock.
Even with the duty of care established, it is necessary to explore two aspects in order to determine whether liability may be imposed upon the respondent. First, the applicable legislation must be reviewed to see if it imposes any obligation upon the respondent to maintain its highways or, alternatively, if it provides an exemption from liability for failure to so maintain them. Secondly, it must be determined whether the province is exempted from liability on the grounds that the system of inspections, including their quantity and quality, constituted a "policy" decision of a government agency and was thus exempt from liability.
The Applicable Legislation
The Highway Act, R.S.B.C. 1979, c. 167, s. 8, provides for construction and maintenance of highways in these words:
8. The minister may . . . maintain a highway across any land taken under the powers conferred by this Act . . . .
and the Ministry of Transportation and Highways Act, R.S.B.C. 1979, c. 280, s. 14, as follows:
14. The minister has the management, charge and direction of all matters relating to the acquisition, construction, repair, maintenance, alteration, improvement and operation of . . . highways . . . .
The liability of the respondent in respect of the exercise of these powers is limited by ss. 2 and 3 of the Crown Proceeding Act, R.S.B.C. 1979, c. 86, in this manner:
2. Subject to this Act,
. . .
(c)the Crown is subject to all those liabilities to which it would be liable if it were a person, . . .
3. . . .
(2) Nothing in section 2
. . .
(f)subjects the Crown, in its capacity as a highway authority, to any greater liability than that to which a municipal corporation is subject in that capacity.
On their face these statutory provisions do not appear to absolve the respondent from its duty of care to maintain the highways reasonably. Rather, by inference they appear to place an obligation on the province to maintain its highways at least to the same extent that a municipality is obligated to repair its roads.
Was the Decision of the Rock Section as to the Quantity and Quality of Inspections a "Policy" Decision Exempting the Respondent from Liability?
The respondent placed great reliance on the decision of this Court in Barratt v. District of North Vancouver, [1980] 2 S.C.R. 418. In the Barratt case injury occurred as a result of a pothole on the road. It was established that the City of North Vancouver had a policy of inspecting its roads for potholes every two weeks. Indeed it had inspected the road where the accident occurred one week earlier and found no pothole. It was found that the inspection policy established by the municipality was a reasonable and proper one. However, Justice Martland in giving the reasons for this Court went on to express an opinion that the municipality could not be held negligent for formulating one inspection policy rather than another. He put it this way at pp. 427-28:
In essence, he [the trial judge] is finding that the Municipality should have instituted a system of continuous inspection to ensure that no possible damage could occur and holds that, in the absence of such a system, if damage occurs, the Municipality must be held liable.
In my opinion, no such duty existed. The Municipality, a public authority, exercised its power to maintain Marine Drive. It was under no statutory duty to do so. Its method of exercising its power was a matter of policy to be determined by the Municipality itself. If, in the implementation of its policy its servants acted negligently, causing damage, liability could arise, but the Municipality cannot be held to be negligent because it formulated one policy of operation rather than another.
This statement was not necessary to the decision as it had already been determined that the system of inspection established by the municipality was eminently reasonable. Neither was there any serious question raised that there had been any negligence in carrying out the system of inspection. The finding that a reasonable system of inspection had been established and carried out without negligence constituted the basis for the conclusion reached by the Court in that case. With the greatest respect, I am of the view that the portion of the reasons relied on by the respondent went farther than was necessary to the decision or appropriate as a statement of principle. For example, the Court would not have approved as "policy" a system that called for the inspection of the roads in a large urban municipality once every five years. Once a policy to inspect is established then it must be open to a litigant to attack the system as not having been adopted in a bona fide exercise of discretion and to demonstrate that in all the circumstances, including budgetary restraints, it is appropriate for a court to make a finding on the issue.
The functions of government and government agencies have multiplied enormously in this century. Often government agencies were and continue to be the best suited entities and indeed the only organizations which could protect the public in the diverse and difficult situations arising in so many fields. They may encompass such matters as the manufacture and distribution of food and drug products, energy production, environmental protection, transportation and tourism, fire prevention and building developments. The increasing complexities of life involve agencies of government in almost every aspect of daily living. Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of "policy". Thus the dilemma giving rise to the continuing judicial struggle to differentiate between "policy" and "operation". Particularly difficult decisions will arise in situations where governmental inspections may be expected.
The dividing line between "policy" and "operation" is difficult to fix, yet it is essential that it be done. The need for drawing the line was expressed with great clarity by Becker J. of the United States District Court, in Blessing v. United States, 447 F.S. 1160. The case required him to deal with a claim under the Federal Tort Claims Act, 28 U.S.C. {SS} 2680 which provides:
The provisions of this chapter and section 1346(b) of this title shall not apply to --
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
He wrote at p. 1170:
Read as a whole and with an eye to discerning a policy behind this provision, it seems to us only to articulate a policy of preventing tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government and of protecting "the Government from liability that would seriously handicap efficient government operations," United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963). Statutes, regulations, and discretionary functions, the subject matter of {SS} 2680(a), are, as a rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions. Rather, the judiciary confines itself -- or, under laws such as the FTCA's discretionary function exception, is confined -- to adjudication of facts based on discernible objective standards of law. In the context of tort actions, with which we are here concerned, these objective standards are notably lacking when the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political or economic decisions.
The need for distinguishing between a governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort. What guidelines are there to assist courts in differentiating between policy and operation?
Mason J., speaking for himself and one other member of the Australian High Court in Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1, set out what I find to be most helpful guidelines. He wrote:
Anns decided that a duty of care cannot arise in relation to acts and omissions which reflect the policy-making and discretionary elements involved in the exercise of statutory discretions. It has been said that it is for the authority to strike that balance between the claims of efficiency and thrift to which du Parcq LJ referred in Kent v. East Suffolk Rivers Catchment Board [1940] 1 KP 319 at 338 and that it is not for the court to substitute its decision for the authority's decision on those matters when they were committed by the legislature to the authority for decision (Dorset Yacht Co. v. Home Office, [1970] AC 1004 at 1031, 1067-8; Anns, at p. 754; Barratt v. District of North Vancouver (1980) 114 D.L.R. (3d) 577). Although these injunctions have compelling force in their application to policy-making decisions, their cogency is less obvious when applied to other discretionary matters. The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot be applied to a policy decision, but it can be applied to operational decisions. Accordingly, it is possible that a duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other. This classification has evolved in the judicial interpretation of the "discretionary function" exception in the United States Federal Tort Claims Act -- see Dalehite v. United States (1953) 346 US 15; . . . United States v. Varig Airlines, supra. The object of the Federal Tort Claims Act in displacing government immunity and subjecting the United States Government to liability in tort in the same manner and to the same extent as a private individual under like circumstances, subject to the "discretionary function" exception, is similar to that of s. 64 of the Judiciary Act, 1903 (Cth).
The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. [Emphasis added.]
The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at a high level.
The decisions in Anns v. Merton London Borough Council and City of Kamloops v. Nielsen, supra, indicate that a government agency in reaching a decision pertaining to inspection must act in a reasonable manner which constitutes a bona fide exercise of discretion. To do so they must specifically consider whether to inspect and if so, the system of inspection must be a reasonable one in all the circumstances.
For example, at a high level there may be a policy decision made concerning the inspection of lighthouses. If the policy decision is made that there is such a pressing need to maintain air safety by the construction of additional airport facilities with the result that no funds can be made available for lighthouse inspection, then this would constitute a bona fide exercise of discretion that would be unassailable. Should then a lighthouse beacon be extinguished as a result of the lack of inspection and a shipwreck ensue no liability can be placed upon the government agency. The result would be the same if a policy decision were made to increase the funds for job retraining and reduce the funds for lighthouse inspection so that a beacon could only be inspected every second year and as a result the light was extinguished. Once again this would constitute the bona fide exercise of discretion. Thus a decision either not to inspect at all or to reduce the number of inspections may be an unassailable policy decision. This is so provided it constitutes a reasonable exercise of bona fide discretion based, for example, upon the availability of funds.
On the other hand, if a decision is made to inspect lighthouse facilities the system of inspections must be reasonable and they must be made properly. See Indian Towing Co., 350 U.S. 61 (1955). Thus once the policy decision to inspect has been made, the Court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.
At a lower level, government aircraft inspectors checking on the quality of manufactured aircraft parts at a factory may make a policy decision to make a spot check of manufactured items throughout the day as opposed to checking every item manufactured in the course of one hour of the day. Such a choice as to how the inspection was to be undertaken could well be necessitated by the lack of both trained personnel and funds to provide such inspection personnel. In those circumstances the policy decision that a spot check inspection would be made could not be attacked. (See United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984).)
Thus a true policy decision may be made at a lower level provided that the government agency establishes that it was a reasonable decision in light of the surrounding circumstances.
The consideration of the duty of care that may be owed must be kept separate and distinct from the consideration of the standard of care that should be maintained by the government agency involved.
Let us assume a case where a duty of care is clearly owed by a governmental agency to an individual that is not exempted either by a statutory provision or because it was a true policy decision. In those circumstances the duty of care owed by the government agency would be the same as that owed by one person to another. Nevertheless the standard of care imposed upon the Crown may not be the same as that owed by an individual. An individual is expected to maintain his or her sidewalk or driveway reasonably, while a government agency such as the respondent may be responsible for the maintenance of hundreds of miles of highway. The frequency and the nature of inspection required of the individual may well be different from that required of the Crown. In each case the frequency and method must be reasonable in light of all the surrounding circumstances. The governmental agency should be entitled to demonstrate that balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in light of all the circumstances including budgetary limits, the personnel and equipment available to it and that it had met the standard duty of care imposed upon it.
It may be convenient at this stage to summarize what I consider to be the principles applicable and the manner of proceeding in cases of this kind. As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions.
In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is 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 and the issue of standard of care required of the government agency must next be considered.
The manner and quality of an inspection system is clearly part of the operational aspect of a governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment.
Turning to the case at bar it is now appropriate to apply the principles set forth by Mason J. in Sutherland Shire Council v. Heyman, supra, to determine whether the decision or decisions of the government agency were policy decisions exempting the province from liability. Here what was challenged was the manner in which the inspections were carried out, their frequency or infrequency and how and when trees above the rock cut should have been inspected, and the manner in which the cutting and scaling operations should have been carried out. In short, the public authority had settled on a plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described as "the product of administrative direction, expert or professional opinion, technical standards or general standards of care". They were not decisions that could be designated as policy decisions. Rather they were manifestations of the implementation of the policy decision to inspect and were operational in nature. As such, they were subject to review by the Court to determine whether the respondent had been negligent or had satisfied the appropriate standard of care.
At trial the conclusion was reached that the number and frequency of inspections, of scaling and other remedial measures were matters of policy; as a result no findings of fact were made on the issues bearing on the standard of care. Since the matter was one of operation the respondent was not immune from suit and the negligence issue had to be canvassed in its entirety. The appellant was therefore entitled to a finding of fact on these questions and a new trial should be directed to accomplish this.
It may well be that the respondent at the new trial will satisfy the Court that it has met the requisite standard of care. It is apparent that although the Crown Proceeding Act imposes the liability of a person upon the Crown, it is not in the same position as an individual. To repeat, the respondent is responsible not for the maintenance of a single private road or driveway but for the maintenance of many hundreds of miles of highway running through difficult mountainous terrain, all of it to be undertaken within budgetary restraints. As noted earlier, decisions reached as to budgetary allotment for departments or government agencies will in the usual course of events be policy decisions that cannot b