Swinamer v. Nova Scotia (Attorney General), 1994 CanLII 122 (SCC), [1994] 1 SCR 445

Swinamer v. Nova Scotia (Attorney General), 1994 CanLII 122 (SCC), [1994] 1 SCR 445

Patrick Owen Swinamer Appellant

v.

The Attorney General of Nova Scotia representing Her Majesty The Queen in right of the province of Nova Scotia Respondent

and

The Attorney General of Canada Intervener

Indexed as: Swinamer v. Nova Scotia (Attorney General)

File No.: 22915.

1993: November 8; 1994: March 17.

Present: La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the nova scotia supreme court, appeal division

Torts ‑‑ Negligence ‑‑ Duty of care ‑‑ Governmental liability ‑‑ Maintenance of highways ‑‑ Tree on private property adjacent to provincial highway falling on truck and injuring driver ‑‑ Transportation Department having conducted survey prior to accident to identify obviously hazardous trees ‑‑ Whether Department's decision to conduct survey one of policy ‑‑ Whether Department negligent in carrying out survey.

The appellant was injured when a tree fell across his truck on a highway maintained by the respondent province. The tree was located on private property, about three feet from the edge of the highway right‑of‑way. Its collapse was caused by a severe fungus infection. As part of its ordinary maintenance activities, the Department of Transportation removed fallen trees and branches from the roads as well as trees which were regarded as dangerous. While there was no general policy in effect to inspect trees, a few months prior to the accident, the Department had made a survey in the region of trees that were an obvious hazard to the travelling public. The survey was carried out by a foreman, who had some knowledge of forests, and a survey technician. Over 200 dead trees were marked, but not the one that caused the accident, and a report was sent to the regional manager requesting funding for their removal. The funding was only partially allowed over a three‑year span.

At trial, the Department was found liable. The trial judge concluded that it was negligent in the manner in which it conducted the survey: the Department should have consulted experts, adequately trained the foreman so that he might recognize a tree suffering from a severe fungus infection and taken the appropriate steps to remove the tree. The Court of Appeal allowed the province's appeal and dismissed the claim.

Held: The appeal should be dismissed.

Per Gonthier, Cory, Iacobucci and Major JJ.: The province owes a duty of care to those using its highways. That duty of care ordinarily extends to reasonable maintenance and would include the duty to take reasonable steps to prevent accidents caused by trees that are hazardous. The appellant, as a user of the highway, was in sufficient proximity to the Department of Transportation to come within the scope of that duty of care. When the tree which constitutes a danger to the users of the highway is situated on land adjoining the highway, the Department has the authority under s. 4 of the Public Highways Act, or even ss. 70(f) and 71 of the Expropriation Act, to enter on that land to remedy the dangerous situation.

Section 5 of the Public Highways Act, which provides that "nothing in this Act compels or obliges the Minister to construct or maintain any highway or to expend money on any highway", does not constitute a statutory exemption from the duty of care, so as to exempt the Department from liability arising from negligent conduct in highway maintenance. Although s. 5 does not impose a specific legal duty to exercise the statutory power conferred on the Department to build highways, once it is exercised, a duty is created to maintain those highways with due care. As well, s. 5(1)(a) of the Proceedings against the Crown Act does not exempt the Department from liability for negligently failing to maintain its highways.

The Department's decision to inspect and identify hazardous trees, however, was taken as a preliminary step in the policy‑making process and thus was exempt from tort liability. It involved questions of expenditure and allocation of funds, clearly indicating that it was a policy decision. There is no suggestion that this was not a bona fide decision or that it was so irrational as to constitute an improper exercise of governmental discretion.

No negligence can be found on the part of the Department in the operational aspect of carrying out the survey. In light of the perceived risks, budgetary constraints and the need to complete the survey expeditiously in order to present a request for funds, there was no need to retain the services of an expert or to require the foreman to undergo special training. The tree that fell appeared to be in good health and was not an apparent source of danger.

Per La Forest and McLachlin JJ.: Cory J.'s reasons were agreed with, subject to the following comments. Whether a private law duty may be posited for public authorities depends on their statutory powers. When, as here, the governing legislation confers powers but leaves the scale on which they are to be exercised to the discretion of the public authority, there is no private law duty on the public authority until it makes a policy decision to do something. Only then does a duty arise at the operational level to use due care in carrying out the policy. A policy decision is not an exception to a general duty, but a precondition to the finding of a duty at the operational level.

Per Sopinka J.: The Public Highways Act does not create a duty to maintain highways but confers only a power to maintain. The bona fide exercise of that statutory discretion cannot result in liability on the basis of a private law duty of care. Here, the conduct complained of was "a preliminary step" preparatory to the exercise of that discretion and therefore cannot be the basis of liability.

Cases Cited

By Cory J.

Applied: Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228; referred to: Brown v. British Columbia (Minister of Transportation and Highways), 1994 CanLII 121 (SCC), [1994] 1 S.C.R. 420; Anns v. Merton London Borough Council, [1978] A.C. 728; Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2; Barron v. City of Natchez, 90 So.2d 673 (1956); Inabinett v. State Highway Department, 12 S.E.2d 848 (1941); Brown v. State, 58 N.Y.S.2d 691 (1945).

By McLachlin J.

Referred to: Anns v. Merton London Borough Council, [1978] A.C. 728; Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2.

By Sopinka J.

Referred to: Brown v. British Columbia (Minister of Transportation and Highways), 1994 CanLII 121 (SCC), [1994] 1 S.C.R. 420.

Statutes and Regulations Cited

Crown Proceeding Act, R.S.B.C. 1979, c. 86, s. 2(c).

Expropriation Act, R.S.N.S. 1989, c. 156, ss. 70(f), 71.

Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, s. 5(1)(a).

Public Highways Act, R.S.N.S. 1989, c. 371, ss. 4, 5.

Authors Cited

Fleming, John G. The Law of Torts, 8th ed. Sydney: Law Book Co., 1992.

APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1992), 108 N.S.R. (2d) 254, 294 A.P.R. 254, 10 C.C.L.T. (2d) 207, 35 M.V.R. (2d) 191, allowing respondent's appeal from a judgment of Grant J. (1991), 1991 CanLII 4497 (NS SC), 101 N.S.R. (2d) 333, 275 A.P.R. 333, 6 C.C.L.T. (2d) 270, which allowed appellant's action against the province for negligence. Appeal dismissed.

Derrick J. Kimball, Nash T. Brogan and Heidi Foshay Kimball, for the appellant.

Jonathan Davies, for the respondent.

Ivan G. Whitehall, Q.C., and Donald J. Rennie, for the intervener.

The reasons of La Forest and McLachlin JJ. were delivered by

McLachlin J. -- I have read the reasons of my colleague Cory J. and agree with his conclusions. I find it necessary, however, to add a few words on the matter of the source of the duty of care which lies on public authorities.

Cory J., as I read his reasons, finds a general duty of care on a province to maintain its highways. This duty is avoided only by establishing that the case falls within a recognized exception to the general duty. As he puts it, "[t]he duty of care should apply to a public authority unless there is a valid basis for its exclusion" (p. 456). He sees policy decisions as a ground of exclusion. He goes on to assert that "[a]s a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual" (p. 456).

This approach may be seen as a departure from the long-standing view that public authorities owe no private duty to individuals capable of founding a civil action, unless such a duty can be found in the terms of the authority's enabling statute. As Lord Wilberforce put it in Anns v. Merton London Borough Council, [1978] A.C. 728, at p. 754, to impose a general private law duty on such bodies

. . . would be to neglect an essential factor which is that the local authority is a public body, discharging functions under statute: its powers and duties are definable in terms of public not private law. The problem which this type of action creates, is to define the circumstances in which the law should impose, over and above, or perhaps alongside, these public law powers and duties, a duty in private law towards individuals such that they may sue for damages in a civil court.

The reasoning in Anns was adopted by this Court in City of Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, at p. 11, where Wilson J. emphasized that whether a private law duty may be posited for public authorities depends on their statutory powers:

These questions, Lord Wilberforce said, must be answered by an examination of the governing legislation.

Lord Wilberforce categorized the various types of legislation as follows:

(1) statutes conferring powers to interfere with the rights of individuals in which case an action in respect of damage caused by the exercise of such powers will generally not lie except in the case where the local authority has done what the legislature authorized but has done it negligently;

(2) statutes conferring powers but leaving the scale on which they are to be exercised to the discretion of the local authority. Here there will be an option to the local authority whether or not to do the thing authorized but, if it elects to do it and does it negligently, then the policy decision having been made, there is a duty at the operational level to use due care in giving effect to it.

This appeal falls into the second category. There is no private law duty on the public authority until it makes a policy decision to do something. Then, and only then, does a duty arise at the operational level to use due care in carrying out the policy. On this view, a policy decision is not an exception to a general duty, but a precondition to the finding of a duty at the operational level.

Subject to these comments, I would dismiss the appeal for the reasons given by Cory J.

The following are the reasons delivered by

Sopinka J. -- I agree with the conclusion reached by my colleague Cory J. but, as in the case of Brown v. British Columbia (Minister of Transportation and Highways), 1994 CanLII 121 (SCC), [1994] 1 S.C.R. 420, I must respectfully disagree that the legislation (Public Highways Act, R.S.N.S. 1989, c. 371) creates a duty to maintain highways. The legislation confers a power to maintain. The bona fide exercise of this statutory discretion cannot result in liability on the basis of a private law duty of care. The conduct complained of was, as my colleague states, "a preliminary step" preparatory to the exercise of that discretion and cannot be the basis of liability.

I would dispose of the appeal as proposed by Cory J.

The judgment of Gonthier, Cory, Iacobucci and Major JJ. was delivered by

Cory J. -- This appeal raises many of the same issues considered in Brown v. British Columbia (Minister of Transportation and Highways), 1994 CanLII 121 (SCC), [1994] 1 S.C.R. 420, which was heard at the same time. Like that case, it involves a consideration of the liability of governmental agencies in tort. I believe this case can also be resolved by the application of the principles set out in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228.

I. Factual Background

At about 3:00 on Saturday afternoon November 26, 1983, the appellant, who was the plaintiff in this case, was driving his truck on Falmouth Back Road, a public highway in Nova Scotia. A large elm tree fell across the truck crushing Mr. Swinamer. He suffered such terrible injuries that he will always remain a paraplegic.

The tree was an elm, about 110 years old, 2.5 feet in diameter and some 60 to 70 feet tall. It was located on the farm of Mr. and Mrs. Redden, about three feet from the edge of the highway right-of-way. The branches of the tree overhung the highway and, undoubtedly, its roots extended onto the right-of-way.

The previous summer the tree was in full foliage and appeared to be in good health. The sudden and unexpected collapse of the tree was caused by a severe fungus infection known as Artists Conk. A lay person looking at the tree could not determine if it suffered from this disease. However, if a wound was found in the tree, usually close to the ground and often covered by leaves or undergrowth, an expert might suspect its presence. Even then, in order to determine the existence of the disease, the tree would have to be drilled and the drill core tested.

The Department of Transportation in the province of Nova Scotia (now the Department of Transportation and Communications) is divided into regions. In each, the divisional engineer assisted by a superintendent is responsible for maintaining the highways within the boundaries of the region.

As part of the ordinary maintenance activities of the Department, fallen trees and branches were removed usually after storms. The Department, as well, removed trees which had been identified as hazards either by the members of the public or Department personnel. These were invariably obviously dead trees, with branches that could fall on the highway.

In 1983 the divisional engineer (Robert Colburn) received complaints about dead trees along the sides of the roads in his county. He very properly believed that they could pose a hazard to the travelling public. At the time he did not have funds in his maintenance budget to remove them. He assigned a foreman, Gerald Allen, and a survey technician to survey the roads in the district to assess the extent of the problem. He instructed them to count the trees that were dead and an obvious hazard to the travelling public.

The foreman was not a trained forester but did have some knowledge of forests and could identify a dead tree. Together with the survey technician he drove more than 800 kilometres over the roads of the region. They counted over 200 trees which were dead, marked them with survey stakes, plotted their locations in a log book and submitted their report to the divisional engineer. Among the trees that they marked was one on the Redden property located a few hundred feet from the tree which caused the accident.

On the basis of this survey the divisional engineer sent, in October 1983, a report to the regional manager identifying the trees which required removal in the interest of public safety and requested funding for this. In January or February of 1984 funding was approved for the removal of only 66 of the trees. Further funding was requested and approved in subsequent years.

II. Courts Below

Trial Court

The trial judge found the Department liable: (1991), 1991 CanLII 4497 (NS SC), 101 N.S.R. (2d) 333, 275 A.P.R. 333, 6 C.C.L.T. (2d) 270. He concluded that the Department was negligent in the manner in which it conducted the inspection. In his view, it should have consulted experts, adequately trained the foreman so that he might recognize a tree suffering from Artists Conk fungus and taken the appropriate steps to remove the tree.

Court of Appeal

The Court of Appeal allowed the appeal and dismissed the claim: (1992), 108 N.S.R. (2d) 254, 294 A.P.R. 254, 10 C.C.L.T. (2d) 207, 35 M.V.R. (2d) 191. The court summarized its reasons in these words (at p. 265 N.S.R.):

(1) there is no statutory duty requiring the Minister to maintain provincial highways;

(2) there is no liability imposed on an abutting owner for a nuisance on an adjoining property;

(3) there is no statutory power to enter onto lands abutting the highway to inspect or remove trees;

(4) any duty at common law to repair highways does not extend to adjoining lands;

(5) even assuming a duty to remove dangerous trees from lands abutting a highway, there was no evidence that the tree in question constituted a danger prior to the accident;

(6) the finding by the trial judge that there was a policy to inspect and remove diseased trees from adjoining lands which was the key to his decision, was not supported by the evidence.

As the evidence did not support such a conclusion with respect the decision cannot stand.

III. Analysis

The applicable parts of the reasons in Just are set out in the Brown decision but for ease of reference are repeated here:

Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of "policy". Thus the dilemma giving rise to the continuing judicial struggle to differentiate between "policy" and "operation". Particularly difficult decisions will arise in situations where governmental inspections may be expected.

The dividing line between "policy" and "operation" is difficult to fix, yet it is essential that it be done.

The need for distinguishing between a governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort. What guidelines are there to assist courts in differentiating between policy and operation?

Mason J., speaking for himself and one other member of the Australian High Court in Sutherland Shire Council v. Heyman (1985), 1988 ABCA 234, 60 A.L.R. 1, set out what I find to be most helpful guidelines. He wrote:

Anns decided that a duty of care cannot arise in relation to acts and omissions which reflect the policy-making and discretionary elements involved in the exercise of statutory discretions. It has been said that it is for the authority to strike that balance between the claims of efficiency and thrift to which du Parcq LJ referred in Kent v. East Suffolk Rivers Catchment Board [1940] 1 KP 319 at 338 and that it is not for the court to substitute its decision for the authority's decision on those matters when they were committed by the legislature to the authority for decision (Dorset Yacht Co. v. Home Office, [1970] AC 1004 at 1031, 1067-8; Anns, at p. 754; Barratt v. District of North Vancouver (1980) 1980 CanLII 219 (SCC), 114 D.L.R. (3d) 577). Although these injunctions have compelling force in their application to policy-making decisions, their cogency is less obvious when applied to other discretionary matters. The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot be applied to a policy decision, but it can be applied to operational decisions. Accordingly, it is possible that a duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other. This classification has evolved in the judicial interpretation of the "discretionary function" exception in the United States Federal Tort Claims Act ‑‑ see Dalehite v. United States (1953) 346 US 15; . . . United States v. Varig Airlines, supra. The object of the Federal Tort Claims Act in displacing government immunity and subjecting the United States Government to liability in tort in the same manner and to the same extent as a private individual under like circumstances, subject to the "discretionary function" exception, is similar to that of s. 64 of the Judiciary Act, 1903 (Cth).

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. (Emphasis added.)

The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at high level.

It may be convenient at this stage to summarize what I consider to be the principles applicable and the manner of proceeding in cases of this kind. As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions.

In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that a duty of care is owed by the government agency and no exemption by way of statute or policy decision-making is found to exist, a traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered.

(Just, supra, at pp. 1239-45.)

Let us see how the principles set out in Just should be applied to the facts of this case. We must first determine if there was a prima facie duty of care resting upon the Department of Transportation to protect travellers from injury caused by hazardous trees.

A. Duty of Care

There can be no doubt that a duty is owed by a province to those who use its highways. It was put in this way in Just (at p. 1236):

In light of that invitation to use both the facilities and the highway leading to them, it would appear that apart from some specific exemption, arising from a statutory provision or established common law principle, a duty of care was owed by the province to those that use its highways. That duty of care would extend ordinarily to reasonable maintenance of those roads. The appellant as a user of the highway was certainly in sufficient proximity to the respondent to come within the purview of that duty of care. In this case it can be said that it would be eminently reasonable for the appellant as a user of the highway to expect that it would be reasonably maintained. For the Department of Highways it would be a readily foreseeable risk that harm might befall users of a highway if it were not reasonably maintained. . . .

Even with the duty of care established, it is necessary to explore two aspects in order to determine whether liability may be imposed upon the respondent. First, the applicable legislation must be reviewed to see if it imposes any obligation upon the respondent to maintain its highways or, alternatively, if it provides an exemption from liability for failure to so maintain them. Secondly, it must be determined whether the province is exempted from liability on the grounds that the system of inspections, including their quantity and quality, constituted a "policy" decision of a government agency and was thus exempt from liability.

Sections 4 and 5 of the Public Highways Act, R.S.N.S. 1989, c. 371, indicate that there is a duty to maintain. They provide as follows:

4 The Minister has the supervision, management and control of the highways and of all matters relating thereto.

5 The Minister may construct or maintain any highway, or may on behalf of Her Majesty in right of the Province enter into contracts or agreements for such construction or maintenance, but nothing in this Act compels or obliges the Minister to construct or maintain any highway or to expend money on any highway.

(Formerly R.S.N.S. 1967, c. 248, ss. 3 and 4.)

That duty of care would ordinarily extend to the reasonable maintenance of those roads. The appellant, as a user of the highway, was in sufficient proximity to the Department to come within the scope of that duty of care. It would be reasonable for him to expect that the road would be reasonably maintained. For the Department, it would be a readily foreseeable risk that harm might befall users of the highway if it were not reasonably maintained.

In Just it was found that maintenance extended to the reasonable prevention of injury to travellers from dangerously situated rocks which could fall on the highway. Similarly, there is a duty owed to users of the highway to take reasonable steps to prevent accidents which can ensue from trees that constitute a hazard falling on the highway. There can be no reasonable distinction drawn between dangerously situated rocks which fall on a highway and obviously dead or hazardous trees which fall on the highway. There was then a duty of care resting upon the Department of Transportation to protect travellers from injury caused by trees that were hazardous. It must next be determined whether there is a statutory exemption or a policy decision which would relieve the respondent from the imposition of this duty.

B. Exemptions or Restrictions on the Department's Liability

(1) Statutory Exemptions

The respondent, like the Court of Appeal, relies on the same s. 5 of the Public Highways Act as the basis for exempting the Department from liability for maintenance, more specifically on the following words:

. . . but nothing in this Act compels or obliges the Minister to construct or maintain any highway or to expend money on any highway.

It is true that there is no similar provision in the British Columbia highways legislation considered in Just. However, in my view, the wording of the section is not explicit enough to constitute a statutory exemption from the duty of care, so as to exempt the respondent from liability in tort. I would agree that the presence of a discretion such as that provided in s. 5 might in some circumstances support an argument that there is no statutory duty to maintain. However in my view, the absence of a provision providing a specific statutory obligation to maintain is not sufficient to exempt the Crown from the general common law duty of care owed to users of the highway. The duty to maintain arises out of the relationship that exists between the Department of Transportation and the users of the highways. If the Department is to be exempted from liability for negligent conduct in the course of its duty to maintain the highway, the wording of the statutory exemption should be clear and precise. Section 5 does not, in my view, exempt the Department of Transportation from liability arising from negligent conduct in highway maintenance.

The remarks to be found in the 8th edition of J. G. Fleming, The Law of Torts (1992), are apposite. The author observes at p. 155 that prior to Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), public authorities "were excused because their statutory power did not create a legal duty to come to the plaintiff's assistance" (emphasis in original). This concept was successfully challenged in Anns for although "the defendant was under no public duty, . . . the statutory power conferred on it for the health and safety of the public engendered a private duty, once having decided to exercise that power, to carry it out with due care". The reasoning in the Anns decision has been approved and applied by the Court. See, for example, City of Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2. It follows that although the Public Highways Act does not impose a specific legal duty to exercise the statutory power conferred on the province to build highways, once it is exercised, a duty is created to maintain those highways with due care when they are constructed.

Next it was argued that the differences in the legislation in Nova Scotia and British Columbia which permit actions against the Crown were such that Crown liability could not be found in this case. It was stressed that s. 5(1)(a) of the Proceedings against the Crown Act, R.S.N.S. 1989, c. 360 (formerly R.S.N.S. 1967, c. 239, s. 4(1)(a)), provides that the province is only liable for a tort committed by its officers or agents, if that tortious act of the servant or agent would, in itself, have given rise to a cause of action. This, it was said, should be contrasted with the Crown Proceeding Act of British Columbia, R.S.B.C. 1979, c. 86, s. 2(c), which provides that the Crown is subject to all those liabilities to which it would be liable if it were a person. It was observed that it is only the legislation of Quebec and British Columbia which provides that the Crown is liable to the same extent as a person of full age and capacity.

I cannot accept this argument. Obviously the Crown can only be liable as a result of the tortious acts committed by its servants or agents since it can only act through its servants or agents. Let us assume, for the purposes of resolving this issue, that the actions complained of by the appellant were indeed negligent. That is to say the failure of the Crown to rely on trained personnel to inspect the trees and the failure of those persons or this personnel to identify the tree in question as a hazard constituted negligence. Yet those very actions or failure to act were those of the Crown's servants undertaken in the course of the performance of their work. If those were indeed acts of negligence then the Crown would be liable. The arguments of the Crown are regressive and to accept them would severely restrict the ability of injured persons to claim against the Crown. I would add that the United Kingdom's Crown Proceedings Act, 1947 which was before the court in Anns, supra, is similar to the Nova Scotia statute.

If the Crown wishes to exempt itself from tortious liability in the construction and maintenance of highways it is a simple matter to legislate to that effect, and to leave the propriety of that legislative action for the voters' consideration. In the absence of a clear statutory exemption, the common law duty to maintain the highways must prevail.

(2) The Lack of Statutory Power to Enter onto Lands Abutting the Highway to Inspect or to Remove Trees

The respondent relies on the conclusion of the Court of Appeal that the Department had no authority to enter on lands adjoining the highway to remedy a dangerous situation. Once again, I cannot accept this argument. The presence, adjacent to the highway, of an obvious danger to the users of that highway would justify the respondent entering on the property to remedy the situation.

It is rather bizarre to think that the Department of Transportation could leave a very old, very large dead tree leaning precariously over the highway without taking steps to remedy the situation, simply because it was located just outside the highway right-of-way. The tree would constitute a continuing danger to all that use the highway. Its removal would be essential for the safety of all who travelled the road.

Section 4 of the Public Highways Act provides that "[t]he Minister has the supervision, management and control of the highways and of all matters relating thereto" (emphasis added). A large dead tree located three feet beyond the highway right-of-way leaning menacingly over the highway must surely constitute a "matter relating" to the highway. That would, in itself, provide an adequate statutory basis to enable the Department to enter on the adjacent land to remedy the dangerous situation. As well, it may be that the provisions of the Expropriation Act, R.S.N.S. 1989, c. 156 (formerly S.N.S. 1973, c. 7), particularly s. 70(f) and s. 71, would provide the requisite statutory authority needed to remedy the dangerous situation.

I am in complete agreement with the statement of principle put forward by McGehee C.J. of the Supreme Court of Mississippi in Barron v. City of Natchez, 90 So.2d 673 (1956), at pp. 676‑77, where he quoted with approval from Inabinett v. State Highway Department, 12 S.E.2d 848 (1941), at p. 851:

It is settled that the tree which caused the injury was growing just off the highway, on the land of Miss Gonzales, within two inches of the line of her land. The question arose and was discussed whether the highway agents or employees could enter the land of Miss Gonzales and remove the tree. We think it is held by most of the courts that such action is not a trespass, but falls within the scope of the duty of the Highway Department to keep the road safe for those who are lawfully upon it.

It is not to be understood that the highway officials may at their own free will enter upon the lands of others and cut trees, even for use on the highway, but we do say that if they know, or in the exercise of ordinary care in their duty of keeping the highway safe for public use should know, that a tree is dangerous to the safety of the public in its use of the highway, it is its duty to enter upon the land and remove the danger. [Emphasis added.]

McGehee C.J. held that a municipality is obliged to maintain its highways in a reasonably safe condition for travel, not only with regard to obstructions and defects in the travelled portion of a highway, but also with regard to the conditions adjacent to and above the highway which might reasonably be anticipated to result in injury and damage to travellers.

Similarly, Judge Greenberg of the New York Court of Claims, in the case of Brown v. State, 58 N.Y.S.2d 691 (1945), reached the same conclusion as to the duty resting on the state to maintain its highways in a safe condition for travel. I am in agreement with the reasoning in both these cases.

It seems eminently reasonable to conclude that there is a power to remove trees that are an obvious danger to users of the highway. This is an integral part of the duty to maintain the highways.

(3) Was the Decision of the Department of Transportation Pertaining to Dead Trees One of Policy or Were its Actions in Undertaking the Survey Operational in Nature?

The trial judge, in his reasons, reviewed the Department's decision to conduct a survey with the object of ascertaining whether it constituted a policy decision which would exempt the respondent from the duty to remove the tree which caused the accident. This is not the correct approach. The enquiry should not be aimed at determining whether a policy decision has been made which specifically exempts a governmental authority from tort liability. Rather, it should be directed at determining what decisions constituted policy and were thus exempt from tort liability and what decisions or actions were operational and thus could, if negligent, attract liability.

In this case, the survey was undertaken in order to identify dead trees and those trees which represented obvious dangers to travellers on the highway. There was no general policy in effect to inspect trees. This is what distinguishes this case from Just, where there was a general policy to inspect potentially dangerous rocks and to take steps to eliminate them. Here the policy was limited. Its purpose was to identify obviously dead and dangerous trees in order to apply for funds to remove them. This flows from the uncontradicted evidence of the divisional engineer, the superintendent and the surveyor. The removal of trees involved the expenditure of funds which would have to be derived from funds allocated for other highway maintenance projects. The survey is an example of a preliminary step in what will eventually become a policy decision involving the expenditure and allocation of funds.

That this was in fact a policy decision can be seen from the trial judge's reasons. He considered factors such as past practice, budget, cost, the possibility of closing the road, the nature of the inspection team and concluded that there was "the will, the plan and the money to remove trees which were an immediate hazard" (p. 346 N.S.R.). The trial judge expressed the view that money could be found or that the needed inspection could be made at little cost. These are all questions of expenditure and allocation of funds and they provide clear indications that this was a policy decision. Moreover, the fact that budgetary considerations are questions of policy is not changed by the fact that the cost of the measures sought may be small. The trial judge was in effect substituting his policy decision for that of the Department of Transportation. This was inappropriate and constitutes an error in law.

It is significant that Mr. Colburn, the divisional engineer, testified that if he had decided to use the money from his general budget to cut the identified trees, he would have had to make cuts in other maintenance activities which could equally adversely affect the security of users of the highway. He was, in fact, setting priorities for the allocation of the available funds. It is also significant that the requested funding for the removal of the 234 identified trees was only partially allowed, and that over a three‑year span. The evidence demonstrates this to be a classic example of a policy decision.

The decision to inspect and identify dead trees was taken as a preliminary step in the policy making process. There is no suggestion that this was not a bona fide decision or that it was so irrational as to constitute an improper exercise of governmental discretion. Policy decisions of government must be immune from the application of private law standards of tort liability. It now must be considered whether there were any acts of negligence committed in the course of carrying out the policy decision.

C. Was the Department Negligent in the Operational Aspect of Carrying Out the Policy Decision?

I cannot find any negligence on the part of the Department of Transportation in carrying out the survey. The Regional Department in which the accident occurred was responsible for the maintenance of some 800 kilometres of roads. It acted with prudence and foresight in conducting a survey of those trees that were dead or posed a clear danger to highway travellers. There is no suggestion that every elm tree should have been suspect. In the circumstances that presented themselves, there was no need to retain the services of an expert or to require the survey foreman to undergo special training. Such might have been the counsel of perfection, but measured against the perceived risks, budgetary constraints and the need to complete the survey expeditiously in order to present a request for funds, it was simply not required.

Certainly there was no perceived danger that would require the Department to undertake a close inspection for small, often hidden wounds in the trees and, if discovered, to drill those trees and test the drill cores. The tree that fell was in full foliage and gave every indication of good health during the summer before the accident. It was not an apparent source of concern. The survey was conducted quickly and identified over 200 dead trees that could constitute a danger. There was no negligence that could be attributed to the employees of the Department in the manner or method of conducting the survey. That is to say there was no negligence demonstrated in the operational aspect of carrying out the policy decision.

In passing, I would again observe that the common law duty of maintaining the highways would require the Department to remove trees which constituted an apparent danger to travellers of the road. A dead tree or a tree leaning over the road at an acute and threatening angle would constitute a danger. That danger would be just as demanding of attention from the Department as would a hole which was deteriorating to the extent that it could lead a driver to lose control. Failure to fill the hole or remove the obviously dangerous tree could equally, in the circumstances of a particular case, constitute negligence attributable to the Department. This is not the situation presented in this case. Here, it was a tree in apparent good health that collapsed due to the ravages of a disease that could not be perceived in the course of a careful layman's inspection.

IV. Disposition

I must respectfully disagree with the first four conclusions of the Court of Appeal. However, for the reasons set out above, I am in agreement with its conclusion that the action be dismissed. The appeal to this Court must thus be dismissed. Both parties were correct on some issues and as a result there should be no order as to costs.

Appeal dismissed.

Solicitors for the appellant: Kimball & Associates, Wolfville, Nova Scotia.

Solicitor for the respondent: The Department of Justice, Halifax.

Solicitor for the intervener: John C. Tait, Ottawa.