The Supreme Court of Canada. Photo: Supreme Court of Canada photo gallery

The Supreme Court of Canada. Photo: Supreme Court of Canada photo gallery

Nelson snowbank injury case heard in Supreme Court of Canada

Decisions 2015 lawsuit have been appealed twice

A hearing was held this week in a Nelson case that has made it to the highest court in the country.

The nine judges of the Supreme Court of Canada heard arguments on March 25 from lawyers in City of Nelson v. Taryn Joy Marchi, but has not yet made a decision.

Taryn Marchi, then 28, injured her knee trying to step through a snowbank on the 300 block of Baker Street on Jan. 6, 2015. She was sent to Kootenay Lake Hospital and later transferred to Kelowna.

At the time, the city was working clearing the streets after a heavy snowfall.

Marchi sued the city, stating that its crews should have left openings in the snowbank to permit safe access between parked cars and the sidewalk, and that this lack of access led to her injury.

She lost at the B.C. Supreme Court level in Nelson, where Justice Mark McEwan said she was “the author of her own misfortune.” He said the city cannot be liable for damages if the policies that guide activities like snow clearing were created in good faith and were followed.

Marchi appealed to the B.C. Court of Appeal, which decided in her favour and sent the case back to the B.C. Supreme Court for a new trial because it said there were errors of fact and law in McEwan’s decision.

But there was no new trial, because the city appealed that decision – the decision to refer it back for another trial – to the next level of appeal, the Supreme Court of Canada.

The City of Nelson has never denied that Marchi was injured. The question is whether the city is to blame for the injury.

If Marchi wins it could be expensive for the city, but the case could also be precedent setting for every Canadian municipality.

“We are acting on the advice of our insurers,” Nelson’s city manager told the Nelson Star when asked in August why the city was appealing the case.

As the law stands in Canada at the moment, municipal policies are immune from liability. You can’t sue a city for a policy it has made in good faith.

But a city could be liable if the action in question was not the policy itself but how it was implemented by city workers.

The city’s written policy on snow clearing, as presented in court, gives a priority sequence for plowing and sanding on city streets. But it has no clear direction on where to put the snow when it is plowed, or whether and how to create passage for pedestrians around or across snowbanks, which could be implementation, not policy, and therefore immune from liability.

The tricky distinction between policy and implementation was one of the legal issues at play at the Supreme Court of Canada on March 25.

At the Supreme Court the judges do not hear witnesses or evidence, but review the reasons for the judgements of the lower courts, with lawyers for each side restricted to a maximum one hour verbal submission along with supporting documents. The cases are webcast on the court’s website.

The main questions the court was asked to decide included:

1. Were the city’s actions on snow clearance during that snowstorm based on written city policies, or were they an implementation of policy?

2. Even if they were policy decisions, and therefore immune from liability, there is another question: Did the city breach the appropriate standard of care expected of a municipality?

3. Were the reasons in favour of the city, given by McEwan in the original B.C. Supreme Court trial, sufficient?

Greg Allen, lawyer for the City of Nelson, argued the attempted distinction between policy decisions and operational decisions is ambiguous and should not apply, and that all decisions made about snow clearing that day were unique to the situation. They stemmed from the city’s policies and were therefore immune from liability, he said.

He added that even if the city was not immune from liability, it nevertheless acted reasonably and met an acceptable standard of care.  

Danielle Daroux, lawyer for Marchi, told the court the city had created a hazard by putting a snowbank between the parking stalls and the sidewalk and could have instead put the snow elsewhere, such as in one of the parking stalls or between the traffic and the parking stalls, or it could have shovelled pathways through the snowbank. Failure to do such things put the public at risk, she said.

Daroux said decisions about the snowbanks were implementation decisions because the clearing and location of snowbanks are not clearly included in the city’s snow-clearing policy, and therefore the city can be held liable.

The Attorneys General of B.C., Alberta, Ontario, and Canada all intervened in the case (intervenors are given five minutes each) to defend the concept of city policies being immune from liability.

A date for a ruling has not been announced.

Related:

City of Nelson appeals sidewalk injury case to Supreme Court of Canada

Judge: Nelson not liable for snowbank injury

Nelson loses snow-clearing appeal, new trial ordered



bill.metcalfe@nelsonstar.com

Like us on Facebook and follow us on Twitter

Just Posted

Workers had a busy time today repairing a broken main water line. (District of Houston photo)
Water service being restored

Main line on 13th had broken

Flags at the District of Houston administrative building were lowered last week following the news that the remains of as many as 215 children were found buried on the grounds of the former Kamloops Indian Residential School. The flags were raised back up yesterday. (Houston Today photo)
Flags lowered in memory

Flags at the District of Houston administrative building were lowered last week… Continue reading

Bruce Tang- Unsplash photo
World Elder Abuse Awareness Day

“Older adults in our communities continue to find themselves in vulnerable situations… Continue reading

Canadian Prime Minister Justin Trudeau participates in a plenary session at the G7 Summit in Carbis Bay, England on Friday June 11, 2021. THE CANADIAN PRESS/Adrian Wyld
Canada donating 13M surplus COVID-19 vaccine doses to poor countries

Trudeau says the government will pay for 87 million shots to be distributed to poor countries

Highway notices like this come down effective June 14. Public health restrictions on non-essential travel and commercial operation have hit local businesses in every corner of B.C. (B.C. government)
Province-wide travel back on in B.C.’s COVID-19 restart plan

Gathering changes include up to 50 people for outdoor events

Calgary Stampeders’ Jerome Messam leaps over a tackle during second half CFL western semifinal football action in Calgary, Sunday, Nov. 15, 2015.THE CANADIAN PRESS/Jeff McIntosh
CFL football will be played this summer in Canada

Governors vote unanimously in favour to start the ‘21 campaign on Aug. 5

Citizenship Minister Marco Mendicino holds a press conference in Ottawa on Thursday, Nov. 12, 2020. The federal government is announcing that Indigenous people can now apply to reclaim their names on passports and other government documents. THE CANADIAN PRESS/Sean Kilpatrick
Indigenous people can now reclaim traditional names on their passports and other ID

Announcement applies to all individuals of First Nations, Inuit and Métis background

Harvesting hay in the Fraser Valley. (Tom Fletcher/Black Press)
COVID-19: B.C. waives farm income requirement for a second year

Property owners don’t need minimum income for 2022 taxes

Cruise ship passengers arrive at Juneau, Alaska in 2018. Cruise lines have begun booking passengers for trips from Seattle to Alaska as early as this July, bypassing B.C. ports that are not allowed to have visitors until March 2022 under a Canadian COVID-19 restrictions. (Michael Penn/Juneau Empire)
B.C. doesn’t depend on U.S. law to attract cruise ships, Horgan says

Provinces to get update next week on Canada’s border closure

This undated photo provided by Girl Scouts of New Mexico Trails shows a scout donating cookies to firefighters in Rio Rancho, New Mexico, as part of the Hometown Heroes program. As the coronavirus pandemic wore into the spring selling season, many Girl Scout troops nixed their traditional cookie booths for safety reasons. That resulted in millions of boxes of unsold cookies. (Girl Scouts of New Mexico Trails via AP)
Thinner Mints: Girl Scouts have millions of unsold cookies

Since majority of cookies are sold in-person, pandemic made the shortfall expected

In this artist’s sketch, Nathaniel Veltman makes a video court appearance in London, Ont., on June 10, 2021 as Justice of the Peace Robert Seneshen (top left) and lawyer Alayna Jay look on. THE CANADIAN PRESS/Alexandra Newbould
Terror charges laid against London attack suspect

Crown says Nathaniel Veltman’s four counts of first-degree murder constitute an act of terrorism

Premier John Horgan speaks as provincial health officer Dr. Bonnie Henry, right, and health minister Adrian Dix look on during a press conference to update on the province's fall pandemic preparedness plan during a press conference from the press theatre at Legislature in Victoria, Wednesday, Sept. 9, 2020. THE CANADIAN PRESS/Chad Hipolito
B.C. officials to provide details on Step 2 of COVID reopening plan Monday

Step 2 could allow for larger gatherings and a resumption of recreational travel

Most Read