POTHOLE AND SIDEWALK MAINTENANCE POLICIES

TOWN OF VIEW ROYAL COUNCIL REPORT

POTHOLE AND SIDEWALK MAINTENANCE POLICIES

PURPOSE:

The purpose of this report is to encourage Council to adopt two core policies relating to road maintenance, for the purposes of mitigating risk as a result of the Supreme Court Judgment regarding Nelson (City) v. Marchi (2021 SCC 41, October 21, 2021).

OPTIONS:

TIME CRITICAL:

Risk mitigation will be immediate upon adoption of these two core policies.

BACKGROUND:

Although the Nelson (City) v. Marchi case pertained specifically to injuries caused by snow clearing decisions¹, the Supreme Court of Canada (“SCC”) ruling of this case raised significant precedence regarding the need for many inspection and maintenance policies to be written to maintain a policy defence to claims.

In other words, an often-sufficient Pre-Marchi policy defence relied on flexible, written or unwritten policies, with oral evidence and limited documentation: this is no longer sufficient following the SCC ruling.

With the assistance of the Town’s insurer, staff are developing written core policies for many of its maintenance processes for Council’s consideration.

DISCUSSION:

Core policies do not change the existing level of service(s) or resources to the Town. What core policies do is provide transparency to the decisions the Town makes to address issues that are based on economic, social and political factors, provided they are neither irrational nor taken in bad faith. In other words, core policies are predicated on the following factors:

• Core policy decisions are made by those responsible for balancing priorities and allocating resources;
• Core policy decisions are made after sustained deliberation and debate;
• Day-to-day budgetary decisions are not core policy decisions;
• Core policy decisions are based on value judgements, not technical standards or objective criteria.

The first policies for Council’s consideration, which forms the basis of this report, are for pothole and sidewalk maintenance. These are items that the Town receives some of the most inquiries on. Staff will be providing a proposed core policy regarding winter maintenance in the near future.

FINANCIAL IMPLICATIONS: None

LEVEL OF ENGAGEMENT:

Public engagement is not necessarily required for the enactment of core policy. Staff are informing Council of the need to establish policy as soon as possible given the SCC ruling. That said, staff are currently in the process of identifying levels of service of many of its critical assets as part of its Asset Management Program (project N-111): communication and public engagement is proposed for this project which could impact both sidewalk and pothole maintenance policies at that time.

¹ Supreme Court of Canada. (2021-10-21). Case in Brief – Nelson (City) v. Marchi. https://www.scc-csc.ca/case-dossier/cb/2021/39108-eng.aspx

CONCURRENCE:

REVIEWED BY:

ATTACHMENTS:

1. Draft Policy #5200-019 Sidewalk Inspection and Maintenance
2. Draft Policy #5200-020 Pothole Inspection and Maintenance