Canadian Underwriter

Why Canada’s top court is reviewing a snow removal lawsuit against a municipality

August 20, 2020   by Greg Meckbach

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The question of whether a municipality is protected from liability for a pedestrian’s injury arising from city staff’s snow removal decisions is headed to the Supreme Court of Canada.

The top court announced Thursday it will hear an appeal from the City of Nelson, British Columbia, where Taryn Marchi parked her car Jan. 6, 2019, after about two days of heavy snowfall. Baker Street had been plowed, resulting in deep snowbanks along the curbs. After parking her car on Baker Street, Marchi started crossing a snowbank about two feet deep onto the sidewalk. As she shifted her weight on to her right foot, she unknowingly stepped partly on to the curb, bending her forefoot up. The snow locked her leg in place and Marchi fell forward, suffering serious injury to her leg. She taken by ambulance to a hospital.

Marchi sued the city. Her allegations that the city was negligent have not been proven in court. Initially, in Marchi v Nelson (City of), released in early 2019, Supreme Court of B.C. Justice Mark McEwan dismissed Marchi’s lawsuit. But the B.C. Court of Appeal found Justice McEwan made some errors, so it ordered a new trial in a ruling released Jan, 2, 2020. Two months later, the city applied for leave to appeal, and the Supreme Court of Canada announced Aug. 20 that leave to appeal is granted.

Initially in 2019, Justice McEwan ruled that city was not liable because the decision about how it plows and removes snow were “bona fide policy” decisions. But Justice McEwan erred in accepting the city’s arguments that all of its snow removal decisions were policy decisions, B.C. Appeal Court Justice Peter Willcock wrote for the appeal court in its unanimous ruling.

Quoting from Binette v. Salmon Arm (City), released by the Supreme Court of B.C. in 2017, Justice McEwan ruled that public authorities are excluded from liability from negligence due to policy decisions – unless those decisions were made in bad faith or were so irrational that they were not a proper exercise in discretion. But in Salmon Arm, B.C. Supreme Court Justice Gary Weatherill noted public authorities can still be liable for negligence due to “operational” decisions as opposed to “policy” decisions.

In the 48 hours before Marchi was injured in 2015, the City of Nelson got heavy snowfall. The city work crews plowed the snow on Baker Street, where Marchi parked her car, early in the morning of Jan. 5. As a result, snowbanks were created at the edge of the street along the sidewalk.

City crews started removing the snowbanks downtown, but not until about 5 p.m. on Jan. 6, after Marchi got injured.

The city had other streets from which it had to plow and remove snow. The city argued that if it did not plow the roads outside the downtown core before removing the snowbanks from the downtown core, then local residents would have been unable to travel downtown to work or shop.

The city argued the downtown core was completely cleared of snow, including snowbanks between the road and sidewalks, by Jan. 9.

“Arguably, the decision not to further extend the hours of snow clearing and the decision not to move snow into particular parking spots, leaving access to the sidewalk open in other areas along the street, were operational [rather than policy decisions],” Justice Willcocks wrote for the appeal court, meaning the city is not automatically immune from liability.

In explaining the difference between operational and policy decisions, the B.C. Court of Appeal cited Just v. British Columbia, released in 1989 by the Supreme Court of Canada. Just arose from an incident in which a boulder came loose near a highway and crushed a car, injuring a man and killing his daughter. The man filed a lawsuit against the province, alleging it negligently failed to maintain the highway properly. Initially a trial judge found that the B.C.’s system of highway inspection, and the way it was implemented, was a policy matter that did not give rise to liability. But the Supreme Court of Canada disagreed, ordering a new trial.

Courts cannot have every government decision designated as one of “policy” that leaves them immune to lawsuits, Supreme Court of Canada Justice Peter Cory wrote for the court in Just.

In Marchi vs. Nelson, it was an error on the part of the original trial judge to accept the city’s argument that all its snow removal decisions were policy decisions without engaging in the analysis called for by the Supreme Court of Canada in Just, Justice Willcocks wrote for the B.C. Court of Appeal in Marchi.

“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,” Justice Cory wrote in Just in 1989.

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