IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110311

Docket: 15729

Registry:
Smithers

Between:

Billabong Road
& Bridge Maintenance Inc.

Appellant

And

Brittany Erin Brook

Respondent

Before:
The Honourable Madam Justice Bruce

On
appeal from:  Provincial Court of British Columbia, June 21, 2010,
Brook v. Billabong Road & Bridge Maintenance Inc., Smithers Registry
No. 14797

Reasons for Judgment

INTRODUCTION

[1]          
This is an appeal of a small claims judgment of the Provincial Court (21
June 2010), Smithers Registry No. 14797 (P.C.). The learned
Provincial Court judge ordered the appellant to pay $3,250 to the respondent
for damages arising out of a motor vehicle accident that occurred on Highway
16E between Telkwa and Smithers on February 17, 2007. The learned Provincial
Court judge concluded that the appellant was 50% liable for the accident by
failing to sand the road where the accident took place in a timely and
effective manner. The learned Provincial Court judge also concluded that the
respondent was 50% liable for failing to take reasonable steps to avoid the
accident.

[2]          
The jurisdiction to review a decision of the Provincial Court is found
in ss. 12 and 13 of the Small Claims Act, R.S.B.C. 1996,
c. 430 [Small Claims Act]. Pursuant to s. 12 of the Small
Claims Act, an appeal lies to the Supreme Court on questions of fact and on
questions of law. Pursuant to s. 13 of the Small Claims Act, the
Supreme Court has the following remedial jurisdiction:

13  (1)  On an appeal, the Supreme Court may do one or more
of the following:

(a)     make any order that could
be made by the Provincial Court;

(b)     impose reasonable terms
and conditions in an order;

(c)     make any additional order
that it considers just;

(d)     by order award costs to
any party to the appeal in accordance with the Supreme Court Rules.

 (2)  There is no appeal
from an order made by the Supreme Court under this section.

[3]          
In Smithers Parts Ltd. v. Hudson, 2009 BCSC 1645, MacKenzie J.
(as she then was) described the standard of review applicable to small claims
appeals at para. 26:

[26]      The standard of review
on pure questions of law is one of correctness, but the standard of review for
findings of fact is they cannot be reversed unless the trial judge has made a
palpable and overriding error.  A palpable error is one that is plainly seen: Housen
v. Nikolaisen, 2002 SCC 33.  An appeal court should only intervene when
there is a material error, a serious misapprehension of the evidence, or an
error in law: Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 11-12; R.
v. Clark, 2005 SCC 2.  This court will only intervene in an appeal from
Small Claims Court where the trial judge was clearly wrong in his apprehension
of the law or the facts: Priority Buildings Services Ltd. v. Ali,
[1999] B.C.J. No. 2820 at para. 10, and Stewart v. Strutt, [1998] B.C.J.
No. 636 at para. 10, both being Provincial Court decisions.

GROUNDS OF APPEAL

[4]          
The appellant’s Notice of Appeal sets out the following grounds of
appeal:

1.   the
Provincial Court Judge erred finding that the negligence of the Appellant was a
contributing cause of the motor vehicle accident which caused damage to the Respondent’s
motor vehicle when the evidence showed that:

(a)  the Appellant
had performed the duty of care it owed to the Respondent in accordance with the
standard of care reasonably expected of a highways maintenance contractor in
the Appellant’s position;

(b)  the Respondent failed to exercise
the standard of care reasonably expected of a motorist in the Respondent’s
position.

REASONS FOR JUDGMENT

[5]          
The facts outlined in the Judgment are as follows:

[2]        Telkwa is a small community to the east of
Smithers, and a number of people live in Telkwa and work in Smithers, so it
would not be unreasonable for this area of Highway 16 to find people on the
road at the time this accident occurred. … Ms. Brook, indicated that she had
left home at, I believe it was 8:30 … to drive to work.

[3]        The road was slippery. She got behind a sanding
truck and she stayed there. She was going, she thinks, about 60 to 70
kilometres per hour in what would be a 90-kilometre per hour zone. The sanding
truck she was driving behind stopped sanding once it got out of a curve just
outside of Telkwa. When Ms. Brook drove onto that portion of the highway, she
lost control of her vehicle and she slid down the highway on the driver’s door.
She was not injured and no other vehicle had an accident in or about that location,
but there was evidence from … Curt Deacon … that the roadway was extremely
icy.

[4]        Billabong has contracted
with the Provincial Government to keep the roads maintained and basically to
keep them safe. …

[6]          
The reasoning of the learned Provincial Court judge is interspersed with
the findings of fact as follows:

[4]        … Now, having read the cases, it is clear that,
given the kind of road conditions that we have in the north, that the duty of
care is not to keep the roads absolutely safe. That is not what is required,
and Billabong is suggesting that Ms. Brook was also negligent, in that she had
not adjusted her speed to what were very icy road conditions.

[5]        This is a difficult situation, because it would
appear that there were efforts certainly being made by both parties to do what
it was they had to do. On Ms. Brook’s part, that was to adjust her driving
speed and driving efforts to icy conditions, and Billabong to keep the highway
safe.

[6]        I am concerned about the time of day that this
occurred, which was in the half hour before a lot of businesses start, that is
nine o’clock in the morning, and as I said, it would not be uncommon to have
vehicular traffic on Highway 16 between Telkwa and Smithers. The driver of the
sanding truck had been given instructions to sand curves and hills and access
going off the highway, and that is what he was doing.

[7]        At this time of the morning, and given what I am
told were the road conditions and the weather conditions as they were known to
exist, and the forecast for the night and into the part of this day, the date
of the accident, I am not satisfied that Billabong had met their duty of care.
This is a time of the day when one would have expected that sanding, keeping
the roads safe, would have progressed to a higher standard than what was met on
that particular date.

[8]        This is a well-travelled
portion, as I said, of Highway 16 and it was extremely icy. I am going to find
a split liability here, or I do. I am going to find a 50/50 split on liability,
based on what, as I said, what I find, that Billabong had not adequately cared
for this stretch of highway, but by the same token I am going to find that Ms.
Brook had not matched her driving responsibilities to the conditions. Given the
vehicles that were on the highway that were behind her, all of those vehicles
were able to stop or slow down or proceed around this accident slowly, but
there were no other incidents with regard to damage.

[7]          
The learned Provincial Court judge found the respondent’s vehicle, which
was beyond repair, was worth $6,500. She ordered the appellant to pay one-half
the value of the vehicle or $3,250.

[8]          
During the trial, the appellant filed as an exhibit a portion of the
maintenance contract in force between it and the Provincial Government. The
following provisions of this contract were relevant to the issue of whether the
appellant satisfied its duty of care:

WINTER ABRASIVE AND CHEMICAL
SNOW AND ICE CONTROL

1.      OBJECTIVE

To facilitate the safe and efficient movement of traffic on
Highways in winter conditions through the use of Winter Abrasives and chemical
snow and ice control applications, and to ensure that the Contractor utilizes
and deploys, those resources that are required to comply with this
Specification, in a manner which anticipates and responds in advance of a
Weather Event as defined in the Maintenance Specification.

3.      DETAILED PERFORMANCE
SPECIFICATIONS

3.1    Routine Maintenance
Services

The Contractor must:

a)   provide proactive winter
maintenance services, in advance of and during a forecasted Weather Event, by:

i)      applying Winter Abrasives
and/or chemicals to minimize the development of Slippery surface conditions on
Highways and to facilitate the removal of snow, compact snow and ice, as
appropriate for the location. For the purpose of this Specification, a Weather
Event includes any meteorological condition that permits the development of
hazardous Slippery surface conditions which requires the application of Winter
Abrasives, anti-icing or De-icing Chemicals and/or snow removal procedures to
maintain or re-establish safe winter driving conditions;

ii)     increasing monitoring of
road temperatures and condition forecasts through Road Weather Information
Systems (RWIS), other available forecast information systems and patrols as
necessary to support the appropriate Weather Event deployment of resources;

iii)    notifying and deploying in
advance of a Weather Event as required. Resources should be deployed and
located to key geographic areas (e.g. mountain passes, higher elevation, known
frequent snowfall and/or blowing snow, Black ice areas) prior to the occurrence
of the forecasted Weather Event in order that Winter Abrasives and chemical
snow and ice control can commence prior to, and during the anticipated weather
and surface conditions.

3.1.1    Performance Time
Frames

The Contractor must:

a)    deploy resources to
appropriate locations (e.g. mountain passes, higher elevation, known frequent
snowfall and/or blowing snow, Black ice areas) and at locations indicated by
the road and weather condition forecast, at least 60 minutes in advance of a
forecasted Weather Event or forecasted hazardous road conditions such as
snowfall, Black Ice and freezing rain.

b)    restore traction within the response times, from the
time the deficiency was detected by or reported to the Contractor, as specified
in the following table: …

[9]          
The timetable for restoring traction on the roads specifies different
times for particular types of highways. The accident site on Highway 16E was
classified as a “B” highway for response times. From the beginning and/or
during a snowfall event, hills over a 5% grade and curves under 60 kilometres
per hour were required to be completed within 90 minutes. Where there was
freezing rain, all locations must be completed in three hours. Black ice must
be addressed within three hours. After a snowfall, all hills are to be
completed within eight hours, all curves within eight hours, and all other
locations within thirty-six hours. Where slippery conditions are encountered on
a patrol, traction must be restored immediately. Finally, the appellant was to
prioritize locations within each highway classification that were known to be
unsafe (i.e. mountain passes, higher elevation, known frequent snowfall and/or
blowing snow, black ice areas).

[10]       
A situation report prepared by the appellant’s employees indicated that
at the start of the shift at midnight on February 17, 2007, Highway 16E, where
the accident took place, had a bare road surface, it was one degree above
freezing and there was light precipitation. The forecast for Highway 16E at the
commencement of the shift was for minus two temperatures and snow or rain. It
is common ground that this was a forecasted Weather Event as defined by the
appellant’s contract with the Provincial Government. Although this is the
anticipated weather, there is no estimated time for the commencement of the
Weather Event. The situation report also indicated that a crew member was
deployed to Highway 16E at Block 16-17; however, there is no evidence as to
whether this was at or near the site of the accident. The shift ended at 10:00 a.m.
on February 17, 2007, and the situation report indicated that the road
conditions on Highway 16E were at this time, “bare, wet slushy” and the
temperature was a high of three and a low of minus one.

[11]       
The appellant called three witnesses at the trial. Mr. Smith, who was
the appellant’s road foreman; Mr. Thompson, who was a driver on duty on the
morning of February 17, 2007; and Mr. Beaulac, who was the appellant’s
operations manager.

[12]       
Mr. Thompson testified that he was in the Telkwa area on the morning of
February 17, 2007, and at about 7:00 a.m. he received a telephone call
from Mr. Smith, his supervisor, instructing him to go to Highway 16E and sand
the hills and corners. When he completed the hills and corners and reached
Smithers, Mr. Thompson received another call from Mr. Smith who instructed him
to return to Highway 16E and sand the straight stretches in an easterly
direction. While sanding in an easterly direction, Mr. Thompson saw the respondent’s
vehicle rolled over at the accident site, which is known as Giddings Corner.

[13]       
Mr. Smith testified that he started his shift at 6:00 a.m. on
February 17, 2007. At this time the road conditions varied throughout the
region; there had been some snow and rain in the early morning and the roads
had slushy, snowy and slippery sections. Mr. Smith went out on a patrol on
Highway 16E and between 7:00 a.m. and 8:00 a.m. he telephoned Mr.
Thompson and instructed him to sand between Telkwa and Smithers on the hills
and corners and, when he finished these priority areas, he was to sand the
straight portions of the roadway. Mr. Smith testified that these instructions
were in compliance with the maintenance standards described in the contract. In
addition, he testified that the response times to black ice, the particular
road condition in this case, begin when it is noted while out on a patrol.
Otherwise, black ice must be dealt with in three hours. In cross-examination,
Mr. Smith testified that Mr. Thompson’s shift began at midnight and ended at
10:00 a.m. on the morning of February 17; Mr. Thompson had been out
sanding and ploughing snow since midnight along with other operators. Mr.
Thompson was operating the nearest available sanding truck when Mr. Smith noted
the black ice on Highway 16E. Lastly, Mr. Smith testified that even though the
timing of a Weather Event cannot be predicted in advance, the appellant sends
out sanding trucks before the event occurs to ensure they are out there when
the Weather Event hits the region.

[14]       
Mr. Beaulac primarily provided the appellant’s position in his evidence;
however, he testified that during the night before the accident the weather
conditions were changing and the crews were out sanding the roads in response
to the changing conditions. It was not until Mr. Smith detected ice on Highway
16E that a truck was specifically assigned to that section of the highway.
There was no evidence that the highway in the area of the accident site had
been sanded prior to Mr. Smith’s call to Mr. Thompson.

[15]       
Although the Reasons for Judgment are very brief, in my view the learned
Provincial Court judge found that the appellant violated its duty of care by
failing to complete the sanding of the icy portions of Highway 16E within a
reasonable period of time, in light of the known weather conditions, as
forecast the previous night, the importance of the roadway in terms of the
volume of traffic, and the time of day when the accident occurred.

ARGUMENT

[16]       
The appellant argues the learned Provincial Court judge erred in law by
imposing a higher standard than required by its contract with the Provincial
Government. The contract required the appellant to sand curves and hills in
priority to straight stretches of highway. Thus had the driver proceeded to
sand the straight stretch where the accident occurred, he would have violated
the appellant’s contractual obligations.

[17]       
The appellant argues the learned Provincial Court judge, by splitting
liability 50/50, failed to answer the issue raised in the Notice of Civil Claim
and applied the incorrect standard of care owed by the appellant. In essence,
the appellant argues the learned Provincial Court judge could only have found
the appellant 100% liable or not liable at all.

[18]       
In support of its position, the appellant relies upon Nason v. Nunes,
2007 BCSC 266, aff’d 2008 BCCA 203.

[19]       
The respondent argues the appellant is essentially asking this court to
retry the case. On appeal in regard to a question of mixed fact and law, the
respondent says the lower court decision must be given deference and cannot be
set aside in the absence of a palpable and overriding error.

[20]       
In this case, argues the respondent, the learned Provincial Court judge
concluded the appellant had a duty to take proactive measures to render the
highways safe in advance of known changes in the weather that might result in
hazardous conditions. Further, the learned Provincial Court judge held the
appellant failed to meet this duty of care because it did not act in a timely
manner after receiving notice of the impending change in the weather
conditions.

[21]       
The respondent argues the standard of review is not correctness. As long
as the decision of the learned Provincial Court judge is within the range of
reasonable possible outcomes it must be given deference by the reviewing court.

[22]       
In support of her argument, the respondent relies upon Housen v.
Nikolaisen, 2002 SCC 33 [Housen] and Dunsmuir v. New Brunswick,
2008 SCC 9.

DISCUSSION

[23]       
A finding of negligence is a question of mixed fact and law because it
involves the application of a legal standard to particular facts. Where it is the
interpretation of the evidence as a whole that is in issue, the court should
not intervene unless there is a palpable and overriding error: Housen at
para. 29. Where the erroneous finding of negligence rests on an incorrect
statement of the legal standard, it is an error of law and the standard of
review is correctness: Housen at para. 33. Caution must be
exercised in making this distinction because it is often difficult to isolate
the legal question from the factual inferences drawn by the trial judge. In
these cases, the standard of review remains the more restricted one of
“palpable and overriding error”.

[24]       
The appellant acknowledges that it owed the respondent a duty of care;
however, it argues that the applicable standard of care is strictly limited to
the contractual obligations described in the maintenance contract with the
Provincial Government.

[25]       
Where the Province delegates responsibility for road maintenance to a
private contractor, the contractor inherits the same Crown immunity for policy
decisions, but continues to be liable under private law for negligence arising
out of operational decisions. For example, where the contract with the
Provincial Government specifies that particular road work must be completed
within two hours of certain events, compliance with this standard is sufficient
to clothe the contractor with immunity for any claim in negligence by a
pedestrian or motorist. This is because the time frame for the completion of
the work is a matter of policy set by the Provincial Government after balancing
the costs associated with the work with the need to ensure the safety of the
travelling public. As Meiklem J. says in Holbrook v. Argo Road Maintenance
Inc., [1996] B.C.J. No. 1855 (S.C.) at paras. 27-28:

[27]      On the analysis prescribed by the majority of the
Supreme Court of Canada in the Just and Brown cases, policy
decisions of the Crown are not reviewable and in Brown it was expressly
held that decisions as to the level of road maintenance are decisions of policy
and cannot be reviewed on a private law standard of reasonableness. They are
only reviewable if so irrational as not to be a proper exercise of discretion.

[28]      The application of
these principles of course allows the government ministry to indirectly
establish the upper limits of the standard of care that they are then held to
in their operational functions. Thus the courts defer in a substantial way to
the government ministry and the operational standard of care slides up and down
the scale according to the level of road maintenance that is set as a matter of
policy. Thus if a private law standard of reasonableness in a certain storm
condition might suggest hourly patrols but policy has set the frequency of
patrols at daily, the latter would prevail as the applicable standard in a
negligence action against the Ministry.

[26]       
On the other hand, where the negligence arises out of an operational
decision, and is not based on a standard of care established as a matter of
policy by the terms of the contract with the Provincial Government, a
contractor must meet the private law standard. The Court of Appeal described
this operational standard of care in Benoit v. Farrell Estate, 2004 BCCA
348 at para. 39:

[39]      The parties agree that Mainroad’s duty is
coterminous with the Crown’s duty of care to users of public highways in
respect of operational matters.  They agree that the decision whether to apply
salt to Highway #4 was an operational decision and that the duty of Mainroad
was to take reasonable care to prevent injury to users of the highway by icy
conditions: Brown v. British Columbia, [1994] 1 S.C.R. 420 at 439.  The
standard of care in respect of highway maintenance was more recently described
in Housen v. Nikolaisen at para. 38, quoting from Partridge v. Rural
Municipality of Langenburg, [1929] 3 W.W.R. 555 at 558-59 (Sask. C.A.):

…the road must be kept in such a reasonable state of
repair that those requiring to use it may, exercising ordinary care, travel
upon it with safety.  What is a reasonable state of repair is a question of
fact, depending upon all the surrounding circumstances….

[27]       
On the facts of this case, the appellant’s course of action on the
morning of February 17, 2007 was based on a combination of policy and
operational decisions. It was a policy set by the Provincial Government that
slippery road conditions must be remedied with the application of abrasives
such as sand within the time frames described in s. 3.1.1 (b) of the
contract. While s. 3.1.1(a) requires the contractor to deploy trucks at
least 60 minutes in advance of the Weather Event as forecasted, it is not
required to restore traction to all the affected roads immediately. Instead, s. 3.1.1(b)
provides that as soon as the deficiency or problem is detected by the
contractor or is brought to the contractor’s attention, restoration of traction
in that area must be completed within the specified time limits. Those time
limits are a matter of policy and are not reviewable by the court. However, the
manner in which the appellant went about completing the restoration of traction
on the roadways is an operational decision that is subject to the private law
standard of care.

[28]       
The appellant argues that it met the contractual requirements because it
restored traction over the black ice on Highway 16E within three hours of the
deficiency coming to its attention. Further, the appellant argues that it
cannot be faulted for prioritizing hills and corners because that is a policy
set by the Provincial Government in the contract.

[29]       
On my reading of the contract, s. 3.1.1(b) requires the contractor
to prioritize the hills and corners during a snowfall event and after a
snowfall event. However, there is no similar requirement to give priority to
hills and curves when addressing freezing rain and black ice. In these situations,
all locations are given equal priority and must be completed within a certain
time depending on the classification of the roadway.

[30]       
Significantly, when slippery surfaces are encountered during a patrol,
as occurred in this case, the contract requires that traction be restored in
all affected locations immediately. In this type of case no priority is to be
accorded to hills and curves and the three hour time limitation does not appear
to be applicable. Because the contract is silent as to the time frame permitted
in this type of situation, applying the private law standard of care, the
contractor must restore traction within a reasonable period of time based on
the relevant circumstances. The standard expected with regard to slippery
conditions noted while on a patrol was to respond immediately, to give all
locations the same priority, and to complete the sanding within a reasonable
period of time.

[31]       
Although the learned Provincial Court judge does not specifically refer
to the distinction between the contractual standard of care and the private law
standard, I find that she implicitly held that the appellant did not meet the
requisite private law standard of care in respect of the completion of the
sanding. Given the amount of traffic to be expected on Highway 16E, the
slippery road conditions detected by Mr. Smith, and the time of day, the
learned Provincial Court judge concluded that the response time fell below the
standards expected of the contractor.

[32]       
In my view, there was evidence to support the learned Provincial Court
judge’s conclusion that the appellant failed to meet this standard of care.
Although Mr. Smith did not recall precisely when he telephoned Mr. Thompson to
attend to the affected area of Highway 16E, Mr. Thompson testified that he
received this call at 7:00 a.m. The accident occurred at about 8:30 a.m.
At that time Mr. Thompson was still doing the hills and curves and had not yet
commenced his sanding of the straight stretches of the highway. In light of the
contractual obligation to restore traction “immediately” in all locations, this
was not a reasonable response time in the circumstances. In determining whether
the appellant had restored traction to this portion of the highway within a
reasonable time, the learned Provincial Court judge was entitled to take into
account the fact that Highway 16E is particularly well travelled at this time
of the morning just prior to the start of the business day.

[33]       
I am also satisfied that the learned Provincial Court judge concluded
that the failure to meet the required standard of care was the underlying cause
of the accident. But for the slippery road conditions, the accident would not
have occurred. The fact that she also concluded that the respondent failed to
take reasonable precautions in all of the circumstances does not lead to an
inference that the failure to sand the roadway had no causal connection to the
accident. Instead, it is reasonable to infer that having concluded the ice on
the road created slippery driving conditions, the learned Provincial Court
judge found the respondent did not take reasonable evasive action to avoid the
accident. Thus there were two equally contributing causes for the accident: (1) the
appellant’s failure to maintain the road in a safe condition; and (2) the
respondent’s failure to take precautionary measures to avoid sliding on the
ice.

[34]       
For these reasons, I dismiss the appeal and award costs to the
respondent at Scale B.

“Bruce J.”