IN THE SUPREME COURT OF NOVA SCOTIA
Citation: McGuire v. Digby (Town), 2006 NSSC 358
Date: 20061026
Docket: SD-05-238394
Registry: Halifax
Between:
Melissa Jane McGuire
Plaintiff
v.
The Town of Digby
Defendant
__________________________________________________________________
DECISION
______________________________________________
Judge: The Honourable Justice Suzanne Hood
Heard: October 26, 2006 in Halifax, Nova Scotia
Written Decision: November 23, 2006 (Oral decision given October 26, 2006)
Counsel: Joshua Martin, for the plaintiff
David A. Graves, Q.C. for the defendant
HOOD, J. [Orally]
[1] The parties in this case agree on the test for summary judgment and they both agree that there are no material facts in dispute. Therefore, according to the case law which has been provided to me, and with which both parties seem to agree, it is proper for me to consider whether summary judgment should be granted.
[2] The plaintiff must establish, therefore, that she has a reasonable chance of success. The claim, in essence, is that the Municipality failed to remove snow banks. There are no decisions where a municipality has been held to have a duty to clear snow banks. The duty with respect to municipalities and maintenance of highways and streets is to be reasonable in the road and street maintenance. There have been no cases where a duty has been found to clear snow banks. There is no duty to do this provided for in the Municipal Government Act nor, to the contrary, is there any provision for exemption from liability.
[3] The plaintiff has not established a duty, but is relying essentially on what she says is a policy of the Municipality and breach of that policy. The policy to which I will refer is in the affidavits of Mr. Martin and Mr. Graves. The policy is entitled “Department of Public Works Operating Procedure Re Snow Removal and Street and Sidewalk Clearing.” Its purpose is: “To establish a standard operating procedure for the timely and efficient clearing of snow and ice from the Town of Digby’s streets and sidewalks, providing the requisite standard of care that can be expected considering financial, economic and other constraints.”
[4] The objectives are fourfold:
To reduce the hazards of icy road conditions to motorists and pedestrians;
To reduce economic losses to the community and businesses caused by workers not being able to get to their jobs;
To facilitate the handling of emergencies by fire, police, and ambulances;
To maintain safe passage of school bus routes to the schools located within the town boundaries.
[5] So, there is reference to road conditions and to motorists and pedestrians. Then, Water Street, which is the street where this accident occurred, is a Class 1 street and the level of service for Class 1 streets is stated to be:
- shall be given first priority treatment and shall be plowed full width to an acceptable level of service before attention is given to Class 2 streets. - services shall be maintained as bare as possible through the continued use of all assigned workers, equipment, and materials suited to the conditions.
[6] It lists the streets and continues:
Class 1 streets are the first to be plowed or salted, depending on weather conditions and affected areas and not necessarily in this order.
[7] I am entitled on an application for summary judgment to interpret the law and to interpret this policy. In my view, this policy I interpret to mean that the streets must be cleared, that is, the travelled way and to do this that results in snow banks being created. The policy does not address snow banks at all, and it does not require removal of snow banks. I refer again to the purpose and objectives of the policy which deal with clearing up snow and ice and, among other things, reducing hazards of icy road conditions to motorists and pedestrians.
[8] The policy for the Class 1 street provides that it is to be plowed full width and as bare as possible. In my view, that does not include clearing snow banks and, again, my interpretation is that that refers to the travelled way.
[9] The failures which are alleged, if they are in fact failures, in my view, did not cause the fall. If cars are parked along, for example, Water Street, if that was the case and if that area was not plowed properly, that would be relevant if the plaintiff in fact fell by a car, behind a car because the area by the car was not plowed. It is clear that that was not the case - she fell on a snow bank. The reference to the street not being plowed full width, as I said, the snow plowing creates the snow banks. Furthermore, there does not seem to be any evidence that they were not in fact cleared full width. There is reference to resources being used to do other things other than clear snow, and in my view, in relation to the policy and the interpretation I have placed upon it, that is not relevant to the issue of causation. The policy, in my view, was complied with.
[10] Now the work records and the weather records indicate that the snowstorm was several days before. There were many days of plowing and salting done. So therefore it was appropriate that the employee do other things and, as I said, no requirement to remove the snow banks.
[11] I therefore conclude that the plaintiff has no real chance of success at trial. Summary judgment is granted in favour of the defendant.
Costs
[11] Costs of $2,700.00 plus disbursements are awarded.
J.