In a unanimous decision, the Supreme Court of Canada ruled that Taryn Joy Marchi (“Marchi”) can sue the City of Nelson (“City”) for damages as a result of injuries she sustained while climbing through a snow pile created by the City’s snowplows.

It is a well-established legal doctrine that policy decisions made by cities are generally immune from liability and negligence claims. However, decisions that are considered ‘operational’ as opposed to ‘policy’ expose cities and other public authorities to possible legal claims.

The Supreme Court in its recent decision in Nelson (City of) v. Marchi
provided guidance in identifying ‘core policy’ and ‘operational’ decisions made by public authorities.

Climbing through a Snowbank to Access Vehicle Results in Serious Leg Injury

On a snowy day in January 2015, Marchi parked her car in the downtown area of Nelson, British Columbia. She attempted to cross a pile of snow left behind by the City’s snow removal efforts in order to get onto the sidewalk.

As she walked over the snowbank in her running shoes, Marchi’s right foot fell through the snow and she fell forward, resulting in a severe leg injury. She was taken to a nearby hospital by ambulance.

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.

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.

Trial Judge finds City followed Policy Operations and was not Negligent

The trial judge dismissed Marchi’s case and found that the City had followed their regular snow-clearing operations, which were created out of policy decisions based upon the availability of personnel and resources. As public authorities cannot be held liable in negligence for policy decisions, except those made in bad faith or by an improper exercise in discretion, the trial judge found that the City did not owe Marchi a duty of care in the circumstances.

In addition to this finding, the judge also ruled that there was no negligence on the part of the City as Marchi was “the author of her own misfortune”.

Court of Appeal finds Trial Judge Erred in Determining Snow Clearing was a Policy Decision rather than an Operational Decision

Marchi appealed the trial judge’s decision and the B.C. Court of Appeal 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.

Furthermore, the appeal court 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.

Supreme Court considers whether Snow Clearing Procedures are Core Policy Decisions or Operational Decisions

The key issue before the judges of the Supreme Court was whether snow clearing procedures in the City were a “core policy decision” (which are immune from liability claims) or an “operational decision” (which are subject to liability claims).

In a unanimous decision, the highest court in Canada upheld the appeal decision and ruled that a city’s snow clearing procedures were considered to be an operational decision, and therefore not immune from negligence claims, such as the one made by Marchi.

The court ruled:

“…the City has not met its burden of proving that Ms. Marchi seeks to challenge a core policy decision immune from negligence liability. While there is no suggestion that the City made an irrational or bad faith decision, the City’s ‘core policy defence’ fails and it owed Ms. Marchi a duty of care. The regular principles of negligence law apply in determining whether the City breached the duty of care and, if so, whether it should be liable for Ms. Marchi’s damages.”

Justices Andromache Karakatsanis and Sheilah Martin indicated in their decision that the term “policy” can be defined as

“a high-level overall plan embracing the general goals and acceptable procedures especially of a governmental body. … Accordingly, the fact that the word ‘policy’ is found in a written document, or that a plan is labelled as ‘policy’ may be misleading and is certainly not determinative of the question. … The focus must remain on the nature of the decision itself rather than the format or the government’s label for the decision.”

The court outlined four factors to be considered when assessing whether the nature of a government’s decision is policy or operational. The factors include:

  1. The level and responsibilities of the decision-maker;
  2. The process by which the decision was made;
  3. The nature and extend of budgetary considerations; and
  4. The extent to which the decision was based on objective criteria.

The City of Nelson argued that its snow removal procedures were determined by the availability of financial resources. However, the Supreme Court ruled in favour of Marchi and determined that the City’s decision regarding creating snowbanks without clearing pathways for sidewalk access was not a core policy decision. Therefore, the City did owe Marchi a duty of care. The Supreme Court dismissed the appeal and ordered a new trial to determine the issues of standard of care and causation.

Contact the Personal Injury Lawyers at Cuming & Gillespie LLP in Calgary if you Have Sustained Injuries as a Result of a Slip, Trip or Fall

If you or a loved one have been involved in a serious accident and suffer serious personal injuries, you may be entitled to compensation for the damages you have suffered. At Cuming & Gillespie LLP, we can help you identify the compensation types you are entitled to under the law. Please contact the award winning lawyers at Cuming & Gillespie LLP 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.