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B.C. tribunal rules city not liable for vehicle damaged by pothole

A pothole is pictured in this undated photo. (Shutterstock) A pothole is pictured in this undated photo. (Shutterstock)
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A Victoria driver has learned the meaning of the old adage 'you can't fight city hall' – especially when It comes to potholes.

In a decision issued Tuesday, British Columbia's Civil Resolution Tribunal rejected the driver's claim seeking $1,400 from the City of Victoria after her vehicle was allegedly damaged when she drove over a pothole.

Suzanne Malo brought the matter to the small claims tribunal after she ran over the pothole near the junction of Fort and Yates streets.

According to tribunal member Megan Stewart's decision, Malo argued the city must have known about the pothole before the alleged damage occurred because "the city has known for a long time that its streets are below an acceptable level and has not taken sufficient action to remedy the situation."

For its part, the city denied the pothole incident, as described, occurred at all. It also argued it does not owe the public a duty of care when it comes to the use of public property.

In her submissions to the tribunal, Malo alleged she was driving her car, with her husband in the passenger seat, when she struck the pothole around 7 p.m. on Dec. 26, 2022, incurring significant damage.

The city told the tribunal it had no knowledge of the pothole until just before 5 p.m. the following day, when another member of the public complained to city hall about the road damage.

The city dispatched a work crew to fill the pothole with cold mix on Dec. 28, 2022, before fully paving over the damaged patch on Jan. 4, 2023, according to a city request-for-service document submitted as evidence.

The central issue in the case, according to the tribunal's decision, was whether or not the City of Victoria owed Malo and other road users a duty of care, and whether or not it was negligent in breaching that duty, thereby causing the driver a foreseeable loss.

City used 'policy decision' defence

The city's defence against the claim relied on a "policy defence," which the tribunal summarized as a position that argues governments "do not owe public users of its property a duty of care if the government's actions were based on a policy decision."

The argument is based on the fact that governments make decisions that must balance competing economic, social and political considerations.

"It is not for the court or the CRT (civil resolution tribunal) to judge those choices," Stewart wrote, adding the corollary that the policy defence is not necessarily a bulletproof shield for governments.

"There is an exception to this defence if the policy decision is made in bad faith, or is so irrational or unreasonable that it is not a proper exercise of the government's discretion," she said. "Also, governments can be liable for operational decisions, such as how a policy is implemented."

The city submitted as evidence a statement from its supervisor of roads and bridges, detailing how it identifies damaged roads in need of repair.

One way it identifies these problems is though its maintenance crews, who regularly inspect roadways during their daily travels between job sites, the supervisor explained. The other way is through public complaints.

The supervisor said its road maintenance response times vary from immediate to one or two days, depending on the severity and location of the hazard.

"The city has one maintenance service truck driver whose job it is to inspect, repair, or make safe minor road failures like potholes, while referring those beyond their capability to their supervisor for assessment and scheduling," the decision summarized.

"Information about pothole repairs is filed in a database to help crews target areas of previous concern, and to help prioritize roads for future maintenance programs, within the city's budget."

Repairs are 'complaints-driven'

The tribunal found the city proved it has a reactive and "primarily complaints-driven" system that is reasonable given the government's budgetary and resource constraints. "The method a local government chooses to maintain its roads is a policy matter, not an operational decision," the three-member panel added.

"Malo says the city was or should have been aware of the generally poor state of its roads due to media coverage of this topic, and taken additional steps to address this," Stewart wrote in the decision.

"I disagree," she concluded. "I find that being generally aware of the roads' state did not meet the policy requirement for maintaining or repairing any particular city roads."

The tribunal ultimately found the city did not owe Malo a duty of care and was therefore not negligent or liable for repairs to her vehicle.

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