Bayfield v. British Columbia (Ministry of


2015 BCSC 2002

Date: 20151103

Docket: M49573



Christine Bayfield



Majesty the Queen in Right of the Province of British Columbia


The Honourable Mr. Justice Affleck

Reasons for Judgment

Counsel for the Plaintiff:

T. Boe

Counsel for the Defendant:

R. J. Meyer

J. Van Camp

Place and Date of Trial:

Nanaimo, B.C.

June 2-5, 8-10 and
12, 2015

Place and Date of Judgment:

Nanaimo, B.C.

November 3, 2015



Closing submissions in this trial were partially heard on June 12,
2015. During the submissions of the defendant the plaintiff objected that the
defendant was not entitled to argue that if the plaintiff’s injuries were
caused or contributed to by faulty maintenance of the Inland Island Highway
that cannot be the basis for the defendant’s liability.

The defendant accepts that the plaintiff was injured when her vehicle
rolled over in the median of the highway. The trial was about liability only.
These reasons do not decide the question of liability. They address only the
dispute that arose during the defendant’s submissions about the implications of
any faulty maintenance of the highway.

For the reader of these reasons to understand the dispute I will briefly
describe the accident, the pleadings, and an agreement between the parties
reflected in an order of this Court and an exchange of correspondence.

The Accident

At the location of the accident the highway has two lanes of travel in
each direction. They are divided by a grassy median about 30 meters wide. The
median is in a shallow V-shape. It is intended that rainwater will move from
the paved portions of the highway, then down the slope of the median to be carried
into a swale at the bottom of the median and then drained into a catch basin.

On March 27, 2005, the plaintiff was travelling southbound on the
highway at what is known as segment 2354, in the lane adjacent to the median. The
pavement was wet from rainwater. While travelling at about the speed limit the
plaintiff lost control of her vehicle, which left the paved portion of the
highway and travelled onto the median. The vehicle went down the adjacent slope
of the median, and when it encountered the bottom of the median, was “tripped”
into a rollover. The vehicle came to rest upright in the northbound lanes of
travel. It was heavily damaged.

In the area adjacent to the swale through which the plaintiff’s vehicle
travelled, there was standing water which had not drained successfully into the
catch basin. The plaintiff alleges the rollover of her vehicle is explained, at
least in part, by inadequate drainage of the swale.

The Dispute about the Implication of the Maintenance of the Highway

In his closing submissions for the defendant, Mr. Van Camp referred to
the maintenance contract for the highway which he suggested would explain what
the defendant “considered to be maintenance issues” and thus the defendant says
irrelevant to liability. Mr. Boe, for the plaintiff, interrupted these
submissions to say that the parties had agreed prior to trial that maintenance
would not be used “as a cause of action or as a defence”. Mr. Van Camp then
carried on with his submissions focusing on the maintenance agreement between
the defendant and Emcon Services Inc. (“Emcon”). In response to a question from
the court, Mr. Van Camp asserted that the grade of the swale, even if it
was inadequate to allow rainwater to drain into the catch basin, and therefore
could help to explain why the plaintiff’s vehicle tripped into a rollover, was
a maintenance issue which could not lead to a finding of liability.

The Pleadings

The action was commenced in March 2007 by a writ of summons and
statement of claim. The statement of claim alleged, inter alia, that the
defendant was responsible for the negligent design and construction of the
highway at segment 2354. On June 6, 2014, the statement of claim was
replaced by a notice of civil claim. The new pleading added an allegation of
negligent maintenance of the highway and alleged that the drainage capacity of
the median at segment 2354 did not meet the relevant design standards. The
defendant was alleged to have failed to “inspect and maintain” the median,
which had become a danger to motorists. The plaintiff also alleged:

(a)       the
“cross slope” of segment 2354 did not meet design standards;

(b)       the
“depth and surface area of water on the pavement … during heavy rainfall … does
not meet the [appropriate] design standards”,

(c)       the
defendant “did not erect signs warning of the risk of hydroplaning”, and

(d)       the
grassy median did not meet the relevant design standards for “side – slope
profile, depth and drainage capacity”.

In its response to civil claim filed on July 17, 2014, the
defendant admits that while the defendant owns segment 2354 of the highway, the
highway itself was built by an independent contractor and at the time of the
plaintiff’s injuries was maintained by an independent contractor. The defendant,
nevertheless, acknowledges it “owes a duty to construct and design a roadway
that is reasonably safe”.

On January 23, 2015, the defendant filed a notice of application to
strike the allegations in the notice of civil claim of “negligent maintenance
and sub-standard drainage” as “time-barred”. On February 10, 2015, by
consent, an order was made which reads:

1.     The word
“maintenance” in paragraph 3 of part one of the notice of civil claim filed
June 6, 2014 is struck.

2.     The words
“and maintain” in part three paragraph 1(j) are also struck.

3.     The word
“maintained” in part three paragraph 1(k) is also struck.

Costs of the defendant’s application, dated January 23, 2015, shall be
in the cause.

The Correspondence between the Parties about the Meaning of the Order

On February 11, 2015, Mr. Van Camp wrote to Mr. Boe observing that
the chambers judge who had made the consent order had been:

…unwilling to approve the order preventing your client from
raising maintenance issues as a cause of action and mine from raising them as a
defence, I understand the enclosed consent order was based on the following

The plaintiff shall not use failure to maintain the inland
island highway by the defendant as a cause of action and the defendant shall
not use maintenance as a defence and not add any further parties regarding
maintenance issues.

Mr. Boe replied confirming “[Mr. Van Camp’s] understanding of the
agreement made at the application as set out in [his] letter”. In a further
letter of April 28, 2015, Mr. Van Camp wrote to advise that the defendant:

…will object to raising any
maintenance issues at the upcoming trial. It is our position that maintenance
issues covered by the enclosed contract excerpt were effectively struck from
your client’s claim and are barred from being raised at trial.

The contract referred to is between the defendant and Emcon. It is
entitled “2003/2004 Highway Maintenance Agreement Service Area 02 Central
Island” It has not been marked as an exhibit on the trial.

On May 4, 2015, Mr. Boe wrote to Mr. Van Camp to confirm
that the defendant “would not raise failure to maintain as a defence” but the
plaintiff would “continue to rely on the allegations of faulty design,
construction, repair and failure to inspect and warn”.

In closing submissions it became apparent that there was a fundamental disagreement
between the parties on what was encompassed by the issue of “maintenance” and
the positions each party could legitimately take in that regard. I adjourned the
trial and directed the parties to provide written submissions on the
implications of that issue.

The Plaintiff’s Argument

The plaintiff argues the agreement reflected in the exchange of
correspondence between the parties precludes “the use of maintenance by either
party for any purpose in this trial”. If the agreement is not binding, the plaintiff
submits both it and the order which deleted reference to maintenance from the
notice of civil claim must be set aside.

The plaintiff further submits:

…that the Agreement was fully
reflexive and meant to be relied upon by both parties as binding promises, such
that the defendant needed not concern itself with bringing an action against
its contractor, Emcon, and the plaintiff needed not worry about the defendant defending
the action by way of alleging that contractor or some other third party was
responsible for the condition of the center median.

The Defendant’s Argument

The defendant submits the agreement “prevents the plaintiff from arguing
the Province can be found liable for poor maintenance on the inland island highway
and centre median on March 27, 2005. It does not prevent the plaintiff from
arguing evidence of poor drainage on March 27, 2005 and afterwards is the
result of negligent construction”.

The defendant submits “[t]he Maintenance Contract helpfully [for the
purpose of determining liability in this action] describes the specific
responsibilities of Emcon for highway surface, median and drainage maintenance
and highway inspection”, and that:

The plaintiff’s position fails to recognize claims respecting
sub-standard drainage in the centre median, depressed elevations between the
fast and slow lanes, and banking of the centre median all fall within Emcon’s
responsibilities under the Maintenance Contract that was in effect in March
. They are maintenance issues.

The facts relating to those allegations, however, are still
relevant to the plaintiff’s claim that the section of the inland island highway
and centre median where the plaintiff’s collision took place were negligently
constructed. That is, if the plaintiff can satisfy that these conditions were
in place at the time the inland island highway was constructed and open for use
by the public, then they are construction issues.

[Emphasis by the defendant.]

The defendant submits that the order which deleted references to “maintenance”
from the notice of civil claim was made because the claim of negligent
maintenance was barred by the Limitation Act, R.S.B.C. 1996, c. 266.
The defendant further submits that in reliance on the order, and the exchange
of correspondence, it did not seek to third-party Emcon and thus an adjournment
of the trial was avoided in part because the defendant perceived it had no need
to lead evidence of the maintenance on the highway performed by Emcon.

The plaintiff understood the effect of the order was simple, namely
neither party was entitled to refer to “maintenance” at the trial. Regrettably,
simplicity has not been achieved, on the contrary there is confusion.

In my view, the confusion stems from a number of factors. One is that
the plaintiff in the letter of May 4, 2015, insisted she could rely on “faulty
repair”. This appears to be akin to faulty maintenance which the plaintiff
alleged should be deleted from the notice of civil claim. Another is the
unfortunate phrase “the plaintiff shall not use failure to maintain the inland
island highway by the defendant as a cause of action”. There is no such cause
of action known to the law of British Columbia. The cause of action pleaded by
the plaintiff is negligence. “[F]ailure to maintain the highway” could be a
particular of that negligence. It appears however that the letter of
February 11, 2015 was intended to mean that the plaintiff had abandoned the
alleged failure to maintain the highway as one particular of the negligence. That
position is less evident on reading the May 4, 2015 letter with its reference
to “repair”. Thirdly, the meaning of the next phrase in the letter of
February 11, 2015: “the defendant shall not use maintenance as a defence”,
is not clear. Does it mean the defendant is not entitled to take the position
that the alleged problems with the highway were maintenance problems and
therefore irrelevant to liability? If that is the intended meaning, how is the
defendant able to rely on the deletion of the word “maintenance” from the
notice of civil claim?

The confusion suggests that the plaintiff has advanced her case at trial
on the basis the defendant is not entitled to defend the action by demonstrating
the accident was caused by faulty maintenance which, if correct, makes the
defendant’s closing submissions on that issue improper.

I cannot conceive how the plaintiff’s position is viable. The defendant
must be entitled, on the present pleadings, to lead evidence and make
submissions that the accident was caused by faulty maintenance which cannot
lead to liability. I am loath to decide the question of liability without affording
the plaintiff an opportunity to lead further evidence on the question of
maintenance. If the trial is reopened, the defendant will also be entitled to
lead further evidence. It may be that the pleadings ought to be amended to
clarify the issues.

If the plaintiff does not seek to reopen her case she may, nevertheless,
wish to recast her argument on liability, and the defendant will be entitled to
respond. If the plaintiff seeks neither to reopen her case nor to recast her
argument, a date should be found for the defendant to complete its submissions
and for the plaintiff to reply.

Counsel are directed to request a management conference by telephone to address
scheduling of the next step in the trial.

“Affleck J.”