City held negligent for plowing parking but not clearing access points to the sidewalk - Nelson (City) v Marchi SCC 41

October 25, 2021, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

HEARD BEFORE: Karakatsanis and Martin JJ. (Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ. concurring)
DATE OF DECISION: 21 OCTOBER 2021
 

DUTY OF CARE: Torts — Negligence — Duty of care — Government liability — Core policy immunity — Snow clearing and removal — Person injured while attempting to cross snowbank created by city when clearing snow — City’s snow clearing and removal decisions made in accordance with written policies and unwritten practices — Whether relevant city decision was core policy decision immune from negligence liability.

The Supreme Court of Canada heard this case in March 2021 and recently released their decision.

A snowfall and snow clearing of parking spaces resulted in curbside snowbanks. The Court was asked to determine when the municipal government could be held liable for its decisions. Specifically, Ms. Taryn Marchi alleged that the City of Nelson, B.C. created a hazard while clearing snow from downtown streets after a snowstorm in January 2015.

Ms. Marchi alleged that the City cleared the snow off the roads, leaving snowbanks on the side of the road early on January 5. She parked at the side of the road in an angle spot later on January 6. When she tried to cross over the snowbank wearing her well treaded running shoes she dropped through the snow and fell down. She injured her leg and landed in the hospital.

She argued that the Municipality should have left or created openings in the snowbanks to allow for safe crossing by pedestrians from the parking spots to the sidewalk. She also argued that other neighbouring municipalities handled the snow clearing process differently. The lower court ruled in favour of the defendant. Ms. Marchi appealed the decision.

The Supreme Court held that the appeal of the decision should be dismissed.  The city has not met its burden of proving that M seeks to challenge a core policy decision immune from negligence liability. Accordingly, it owed M 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 M’s damages. The standard of care and causation assessments require a new trial.

The Court ruled that “The trial judge’s treatment of the standard of care was flawed because he imported considerations relating to core policy immunity and failed to engage with the practices of the neighbouring municipalities. The trial judge also erred in his causation analysis since he never asked whether, but for the city’s breach of the standard of care, M would have been injured and never addressed the remoteness question of whether the specific injury was reasonably foreseeable”

Using the criteria for duty of care The Court applied the two-stage duty of care framework to the case as set out in Just v. British Columbia (1989). Specifically in this case The Court stated that:

M has proved that her circumstances fall within the scope of the Just category. She suffered significant physical injury on a municipal street, and by plowing the parking spaces on the street where M parked, the city invited members of the public to use them to access businesses along the street. The Just category clearly extends to the prevention of injuries from snowbanks created by a government defendant on the roads and sidewalk.

The city has not proved that its decision to clear the snow from the parking stalls in which M parked by creating snowbanks along the sidewalks without enduring direct access to sidewalks was a core policy decision immune from liability in negligence. The city’s decision bore none of the hallmarks of core policy. Although the extent to which the city’s public works supervisor was closely connected to a democratically‑elected official is unclear from the record, she disclosed that she did not have the authority to make a different decision with respect to the clearing of parking stalls (the first factor). In addition, there is no suggestion that the method of plowing the parking stalls resulted from a deliberative decision involving any prospective balancing of competing objectives and policy goals by the supervisor or her superiors. There was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks; the city’s evidence is that this was a matter of custom (the second factor). Although it is clear that budgetary considerations were involved, these were not high‑level budgetary considerations but rather the day‑to‑day budgetary considerations of individual employees (the third factor). Finally, the city’s chosen method of plowing the parking stalls can easily be assessed based on objective criteria (the fourth factor). Therefore, the city’s core policy defence fails and it owed M a duty of care.

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