Canadian Underwriter

Why this city owes duty of care in $1 million personal injury lawsuit

October 21, 2021   by Greg Meckbach

Print this page Share

A Supreme Court of Canada ruling released Thursday means a British Columbia municipality is facing a new trial, in a $1-million lawsuit, filed by a woman who was seriously injured after parking her car after a snowstorm.

In City of Nelson v. Taryn Joy Marchi, released Oct. 21, the Supreme Court of Canada clarified how courts should decide which government decisions should remain immune to negligence lawsuits. The top court dismissed an appeal, by the city, of a 2020 B.C. Court of Appeal ruling.

The Nelson ruling does not necessarily mean the city is ordered to pay damages because that will be up to the judge in a future trial. Thursday’s ruling does mean the city has lost its bid to restore a 2019 B.C. Supreme Court ruling – which threw the case out of court – that the city did not owe a duty of care to the plaintiff in the first place.

On Jan. 6, 2015, Marchi parked her car on a street in Nelson after about two days of heavy snowfall. There was a snowbank between the road and sidewalk. Marchi tried to cross the snowbank. But as her right foot stepped onto the snowbank, Marchi dropped through the snow, stepped directly into an area which bent her forefoot up, and seriously injured her leg. She was taken by ambulance initially to Nelson and then to a hospital in Kelowna.

In 2019, Supreme Court of B.C. Justice Mark McEwan ruled found that the city was not liable because the decision about how city crews plow and remove snow were “bona fide policy” decisions.

Marchi appealed. In 2020, the B.C. Court of Appeal ordered a new trial, ruling that the trial judge “did not appropriately consider and identify” what acts or omissions on city’s part should have been subject to court scrutiny.

A key point of contention was on the nature of decisions on plowing and clearing snow, made by Nelson city staff, in early January 2015. The city argued those decisions were “policy” decisions that could shield a government from liability. The plaintiff countered that they were “operational” decisions for which the city could be found liable. The Oct. 21, 2021 ruling means the plaintiff won on that particular issue.

The Supreme Court of Canada found that the decisions that led to the forming of the snowbank in which Marchi stepped were not “core policy” decisions which would shield the city from liability for negligence liability.  But a new trial is needed in order to determine whether the city breached the standard of care, plus the chain of causation leading to Marchi’s injury. Those questions require key findings of fact which the Supreme Court of Canada has not made.

“Courts have recognized that a sphere of government decision-making should remain free from judicial supervision based on the standard of care in negligence. Defining the scope of this immunity has challenged courts for decade,” Justices Andromache Karakatsanis and Sheilagh Martin wrote for the Supreme court of Canada in its unanimous ruling.

“Core policy decisions will often be formulated after debate — sometimes in a public forum — and input from different levels of authority. Government activities that attract liability in negligence, on the other hand, are generally left to the discretion of individual employees or groups of employees. They do not have a sustained period of deliberation, but reflect the exercise of an agent or group of agents’ judgment or reaction to a particular event.”

In the ruling, the Supreme Court laid out four factors that determine whether a government’s decision is operational or policy in nature:

  • the level and responsibilities of the decision-maker
  • the process by which the decision was made
  • the nature and extent of budgetary considerations; and
  • the extent to which the decision was based on objective criteria.

The main reason for making governments immune to liability from “core policy decisions” lies in the principal of separating the legislative, executive and judicial branches of government.

Subjecting core policy decisions to private law duties of care “would entangle the courts in evaluating decisions best left to the legislature or the executive,” wrote Justices Karakatsanis and Martin.

The City of Nelson had argued that its decision to leave snowbanks over the curb – after plowing an angled-parking area on Baker Street in the downtown street – was its policy. Marchi countered that someone would have decided not to have a city worker use a shovel to make a passage way through the snowbank, to the sidewalk. That decision does not pertain the “political, economic or social considerations” that would trigger the doctrine of policy immunity, Marchi’s lawyer argued to the Supreme Court of Canada.

“Although there is no question that the legislative and executive branches sometimes make core policy decisions that ultimately cause harm to private parties the remedy for those decisions must be through the ballot box instead of the courts,” wrote Justices Karakatsanis and Martin.

But in the City of Nelson’s case, it invited members of the public to park downtown when it plowed parking spaces on Baker street, the Supreme Court of Canada found.

“The plaintiff was attempting to do just that when she fell into a snowbank that had been created by the City during snow removal,” Justices Karakatsanis and Martin wrote.

The Supreme Court cited a number of rulings including Just v. British Columbia, a divided ruling released in 1989 by the Supreme Court of Canada. That case arose from a 1982 tragedy in which a man was injured – and his daughter was killed – after a boulder fell on to their car from a slope above a B.C. provincial highway. The Supreme Court of Canada found, in Just, that the province owed the plaintiff a duty of care in maintaining and inspecting highways. Originally a B.C. court found that the province did not owe a duty of care.

The Just category of cases – in which decisions are operational and not policy decisions – include the prevention of injuries from rocks falling onto the road), the prevention of injuries from trees falling onto the road and the prevention of injuries from black ice on the road, the Supreme Court of Canada wrote in Nelson.

“It also clearly extends to the prevention of injuries from snowbanks created by a government defendant on the road and sidewalk. In our view, Ms. Marchi has proved that her circumstances fall within the scope of the Just category.”

Feature image via Dufresne