A claim against the City of Surrey recently came before the B.C. Civil Resolution Tribunal for the relatively modest amount of $5,000, but the decision of the Tribunal is nevertheless illustrative of the power of the policy immunity defence for local governments facing claims of negligence.
David Feuring claimed that a tree on Surrey’s land fell onto his car and damaged it. Mr. Feuring alleged that Surrey was negligent in failing to have inspected and maintained the tree. Surrey admitted that it owned the tree and was responsible for it but denied that it had been negligent even though the City had not attended to this tree at any recent time.
The Tribunal received an expert report from an arborist which stated that the tree’s collapse was foreseeable and preventable. The Tribunal agreed that before the tree fell, a tree inspection by a qualified professional would have revealed there was a significant risk of the tree falling and damaging either nearby structures or vehicles.
However, the Tribunal noted that under the common law, public authorities do not owe a duty of care for properly-exercised policy decisions such as allocating budgets, but rather can only be liable for operational decisions that implement and perform policy decisions, including those based on administrative directions, professional opinion, or technical standards.
The Tribunal looked to Surrey’s written Shade Tree Management Plan (STMP), which set out inspection and maintenance policies with respect to “inventoried” versus “non-inventoried” trees. Surrey employs staff arborists to maintain over 100,000 “inventoried” trees along boulevards and in parks, but it has a lower maintenance standard for native, remnant, or homeowner-planted trees that it does not inventory. Specifically, the STMP provides that Surrey only performs non-inventoried tree risk assessments and inspections on a demand basis, in response to service requests it receives. The City then carries out further work if the risk of tree failure meets or exceeds the applicable Surrey tree standards. Surrey had not received any service requests with respect to the subject non-inventoried tree.
Surrey submitted to the Tribunal that its lower maintenance standard for non-inventoried trees was a policy decision arising from budgetary and staff constraints. The Tribunal agreed and held that Surrey was not liable. In particular, the Tribunal found that Surrey’s decision was made in good faith, and was a rational decision that attempted to strike a balance between Surrey’s limited budget and staff and the very significant number of trees for which it is responsible.
This decision and others like it will need to be revisited once the Supreme Court of Canada has rendered a decision on the appeal proceeding before it of the decision of the B.C. Court of Appeal in Marchi v Nelson (City of), 2020 BCCA 1, which we have written about previously here. That case involves the City of Nelson’s sidewalk snow clearing practices. The key question on the appeal is whether the decision not to leave access spaces in snowbanks to areas of the sidewalk was operational in nature as opposed to being based in policy.