City of Whitehorse asks for proposed class-action over accessibility to be tossed
City argues it owes 'no legal or other duty to any party to enforce its bylaws or policies'
The City of Whitehorse is asking for a proposed class-action lawsuit over its alleged failure to ensure sidewalks, parking stalls and transit stops are accessible — particularly in the winter — to be tossed.
In a statement of defence filed to the Yukon Supreme Court on Oct. 28, the city argues, among other things, that the case doesn't comply with territorial law, is an "abuse of process" and that allegations that it hasn't complied with its own snow and ice removal rules are baseless.
"In any event, the City owes no legal or other duty to any party to enforce its bylaws or policies," the document says.
The defence comes in response to a statement of claim filed against the city by two Whitehorse residents in September. Ramesh Ferris and Eva Von Flotow, who both have mobility issues, allege that their ability to get around and participate in society has been seriously impeded by the city's actions or lack thereof, particularly when it comes to snow and ice removal.
The pair allege the situation amounts to a violation of their Charter rights and want the lawsuit to be certified as a class-action on behalf of any Whitehorse residents who would have qualified for an accessible parking permit as of Sept. 8, 2018.
That certification has not yet happened, nor have the allegations been tested at trial.
In its statement of defence, however, the city argues that the lawsuit should be dismissed because it didn't meet key timelines set out in the territorial Municipal Act for taking "action" against a municipality for poor road maintenance. The Municipal Act states that a municipality's chief administrative officer must be notified within 21 days of an incident and that the action must be started within 12 months.
"The City is not aware of any material facts that demonstrate when the causes of action pleaded herein arose and the claims are time-barred," the document reads.
Proceedings an 'abuse of process,' city claims
The city also denies that it failed to enforce its own Snow and Ice Control Policy and Maintenance Bylaw, noting that it operates with a "limited snow removal budget" and resources, and that the policy's priorities and standards are meant "to provide the greatest benefit to the majority of the travelling public."
"At all material times, the City properly administered the Snow and Ice Policy to the benefit of the majority of the travelling public, in accordance with the policy itself and in a manner that complies with its obligations, statutory or otherwise," the statement of defence says.
The city also argues that the barrier-free design requirements laid out under the National Building Code don't apply to Whitehorse's accessible parking spots, and that if they did, there would be no violation of them.
"Among other things, the Barrier-Free Requirements do not set out any obligations with respect to snow removal," the statement of defence says, responding to allegations that accessible parking spots are often rendered unusable in the winter.
The statement of defence denies that anyone's Charter rights have been violated, but argues that if any violations did occur, they were "minimally impairing" and "reasonably justifiable."
"As these claims are effectively claims for discrimination, the City says that this Court is not the appropriate forum for the Plaintiffs' claims and that this proceeding is an abuse of process," the statement of defence adds.
The city is asking for the lawsuit to be dismissed and for the plaintiffs to pay its legal fees.
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