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POWERS OF MUNICIPALITY - Municipal property - Highways - Ownership and control - Services

Monday, March 19, 2018 @ 12:02 PM  

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Application by the county for a permanent injunction prohibiting the respondent fire department from providing services on provincial highways within the applicant’s boundaries unless requested to do so by the applicant. The applicant had its own fire department. Ten municipalities within the applicant’s boundaries contracted with the respondent for fire services. The only area in dispute was the connecting highways between municipalities within the applicant’s boundaries. There were three incidents in 2016 in which the respondent attended the scene of an emergency on a connecting highway, and provided services outside its contracted areas: a car fire the respondent was informed of by a member of the public; a private barn fire; and a motor vehicle accident that it came across. The respondent dealt with the car fire, and remained on the scene of the other two incidents after the applicant’s fire department arrived. The applicant claimed the respondent’s presence was obstructive. All nine municipalities and the county signed a mutual aid agreement under which the respondent was precluded from attending incidents outside its contract areas unless requested by the applicant, and the applicant obtained an interim injunction. In 2017, there was a head-on collision on a connecting highway, resulting in two deaths and two injuries. The applicant was dispatched and arrived first. The respondent was subsequently also dispatched under the auspices of the mutual aid agreement. The respondent claimed the applicant’s fire department ordered it offsite and, had it been able to stay, it could have saved lives. The respondent argued it provided better service, was implicitly authorized by Alberta Transportation, and the applicant’s effort to bar it stemmed from personal animus of the chief.

HELD: Application allowed. It was clear from the Highways Development and Protection Act (HDPA) that the province had exclusive authority over the design, placement and construction of highways, and the narrow definition of road in s. 616(aa) of the Municipal Government Act (MGA) reflected this. The broader definition of road in s. 1(1)(z) applied to the balance of the MGA. Accordingly, s. 18(1) gave municipalities direction, control and management of roads within it for the purposes of the MGA. One of those purposes was the provision of fire services. This was not inconsistent with the HDPA, which did not address provision of fire services at all. Under s. 7(1) of the Forest and Prairie Protection Act (FPPA), council was responsible for fighting and controlling fires within municipal boundaries, so it would be incongruous if an accident required both rescue and fire services, and the municipality could deal with the former but cede authority on fire, especially given fire services under fire services under s. 532.2(1)(c) MGA addressed both fire and rescue, and the public perception was that firefighters provided both services. Alberta Transportation had no contracts for provision of emergency services in its highways, which one would expect it to do if it had jurisdiction over the matter. While s. 9(1) of FPPA left the minister residual discretion to fight fires if the municipality was not adequately dealing with the risk to public land, this was not the scenario here. That Alberta Transportation had reimbursed the respondent for services provided on connecting highways was not a license to continue to provide such services without the applicant’s request, and the respondent was not the applicant’s fire department as contemplated by the policy. Only the applicant had authority to address emergencies, and could do so by deploying its own fire department, or another department through the mutual aid agreements. In arriving and dealing with incidents without being dispatched, the respondent usurped the applicant’s duties and functions, and in remaining at the scene unwanted, it caused interference. While the respondent did not put the public at risk and its actions were well-intentioned, it violated the applicant’s by-law. It was purely speculative that the respondent could have saved lives had it been able to provide services. Highways required a coherent system of emergency response. While the respondent requested a double call out system, it was not clear the court could impose this, and doing so would take over the applicant’s policy role.

Lac Ste. Anne (County) v. North West Fire Rescue-Onoway Ltd., [2018] A.J. No. 138, Alberta Court of Queen's Bench, D.R. Mah J., February 8, 2018. Digest No. TLD-March192018003