The Supreme Court of Canada will hear a case, likely in 2021, to determine whether a city is responsible for a leg injury sustained by a woman who climbed over a snowbank created by the city’s snowplows. This is a case involving municipal liability and the operational versus policy distinction that can give rise to immunity from liability.
THE FACTS AND THE TRIAL
On a snowy day in January 2015, Taryn Marchi (“Marchi”) parked her car in the downtown area of Nelson, British Columbia. As she exited her vehicle, she was blocked by a snowbank left behind by a city snowplow on the adjacent sidewalk.
The City had plowed the main road early in the morning and in doing so created snowbanks along the curb and onto the sidewalk. According to the City, it is their priority to clear the street for traffic and then, if time permits, to return to remove the snowbanks.
As Marchi attempted to walk over the snowbank in her running shoes her right foot fell through resulting in a severe leg injury. She was taken to a nearby hospital by ambulance.
Marchi sued the City of Nelson for negligence. It was her position at trial that the City should have created openings in the snowbanks to allow for safe access from the street onto the sidewalk. Marchi produced evidence at trial of the practices of neighbouring cities that provided reasonable alternatives to snow clearing streets while also ensuring safe access onto the sidewalks.
Liability was the only issue at trial as the parties had agreed on damages.
Justice Mark McEwan of the B.C. Supreme Court dismissed the case and found that the city had followed their regular snow-clearing operations, which were created out of policy decisions governed by both social and economic factors. The City cleared their roads and pathways in a specific order based upon the availability of workers and prioritized having roads cleared first. Given that public authorities cannot be held liable in negligence for policy decisions, except those made in bad faith or by an improper exercise in discretion, Justice McEwan found that the City did not owe Marchi a duty of care in the circumstances.
In the alternative, even if the decision was an operational decision and the City did owe Marchi a duty of care, Justice McEwan ruled there was no negligence on the part of the City as Marchi was “the author of her own misfortune”.
Marchi decided to appeal this decision and took her case to the B.C. Court of Appeal. The appeal court found that the city was responsible for creating pathways for pedestrians and therefore overturned the trial court decision and ordered a new trial.
In a unanimous decision, the judges of the appeal court agreed that the trial judge erred in determining that the snow-clearing decisions by the City were policy decisions and may have instead been operational decisions.
The appeal court cited the Supreme Court of Canada’s reasoning in the case of Just v. British Columbia:
…complete Crown immunity should not be restored by having every government decision designated as one of “policy”. Thus the dilemma giving rise to the continuing judicial struggle to differentiate between “policy” and “operation”. …
The dividing line between “policy” and “operation” is difficult to fix, yet it is essential that it be done.
The appeal court also did not agree with the trial judge’s finding that Marchi was an “author of her own misfortune”. The judges found that the possibility that Marchi should have known about the risk of climbing a snowbank does not necessarily absolve the city of liability.
The Court of Appeal allowed Marchi’s appeal, set aside the order dismissing her action, and ordered a new trial.
The City of Nelson sought leave to appeal from the Supreme Court of Canada, which was granted in August 2020. At that time, it is anticipated that the Supreme Court of Canada will clarify the division between policy and operational decisions in negligence claims in Canada. This may alter liability exposure for public authorities by expanding the duty of care owed by public authorities in negligence claims.
We will continue to follow this appeal and will report on the Supreme Court of Canada’s decision in this blog once it becomes available.
In the meantime, if you or a loved one have suffered a serious personal injury you may be entitled to compensation for the damages you have suffered. At Cuming & Gillespie Lawyers, we can help you identify the personal injury compensation types you are entitled to under the law. Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or at 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve.