By DAVID JOHNSON
THE SUPREME COURT of Canada has unanimously ruled that municipal governments are not immune from snow removal negligence and liability claims. This could easily become a decision with long-term and very expensive consequences.
Our most vaunted court in the land made this decision in regards to a case involving a nurse in Nelson, B.C.
Taryn Joy Marchi badly injured her leg while climbing over a snowbank in 2015. The City had plowed the snow and left the snowbank between her car and the sidewalk, without cutting access points between the two spaces, forcing her to climb over, and the injury occurred.
She brought a lawsuit against the City of Nelson, but lost that case. The judge ruled that Marchi assumed the risk when she tried to climb over the snowbank and that she was the “author of her own misfortune.”
Marchi appealed to the B.C. Court of Appeal, which overturned the ruling, and then the City appealed to the Supreme Court of Canada. The high court disagreed with the initial judge and said his judgment was in error of the law.
The devil was in the details
The Supreme Court of Canada justices were tasked with deciding the legal distinction between ‘core policy decisions’ made by governments — which are immune from liability and negligence claims (Nelson, B.C.’s claim) — and ‘operational decisions’ that are taken while implementing policy, which are in fact subject to liability claims (Marchi’s claim).
In its decision, the court stated, “While there is no suggestion that the City made an irrational or bad faith decision, the City’s ‘core policy decision’ defence fails and it owed Ms. Marchi a duty of care … and the regular principles of negligence law apply.…”
The Supreme Court added that the decision to create snowbanks without clearing pathways for sidewalk access was not a matter of core policy but was an operational decision.
The decision continues; “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,” and “all Marchi had to prove was that, on the balance of probabilities, she would not have injured herself if it hadn’t been for the way the city plowed snow.”
The city was negligent in the way it plowed snow. That’s basically the guts of it.
This case is significant because it definitely affects cities across the country.
During this five-year legal process, the case caught the attention of provinces and cities across the country … and for good reason. Many attorneys-general across the country were listed as interveners in this case to the Supreme Court.
The consequences of the decision are simple:
Every municipality or local government charged with the task of snow clearing across the Great White North is now liable if someone hurts themselves, not just while trying to scale a snowbank, but for any injurious pedestrian snow accident caused by a city moving snow … period.
You can imagine every municipality from Iqaluit to Kamloops just added a new item to their next council meeting. Arguments, ideas, proposals and policies will fly. This very real fear of potential liability will equal a lot of requests to be sent to legal counsel for analysis and other preliminary steps to safeguard themselves will roll out of this.
On the ground, more City staff may be needed during snow clearing and more shovels may need to be purchased so that holes and channels can be dug every 20 feet? 30 feet? … as you travel down the street between parking spaces and sidewalks? Maybe a new machine will need buying that specifically handles this exact type of problem?
And not just our Victoria Street level of importance or usage, but ALL city streetside parking places where there could be an expectation of human movement from a car … to a sidewalk.
But is it enough? There is no question that every person in our city has experienced having to negotiate a way over or around these machine-made snow berms … imagine the volume across the country … imagine the injuries that are now suable.
The City of Kamloops recently decided to spend $120,000 more this year to clear more snow at bus stops and on sidewalks … yet this suddenly seems like far from enough to keep the lawsuits at bay, given this decision.
From what we heard from the Supreme Court, there is no policy that protects the City from liability, as ‘the way cities plow snow’ itself is subjective enough to find negligible fault in almost any circumstance.
One thing for sure, any increased operational costs in a city, including expenditures for lawsuits, comes out of taxpayers’ pockets.
In other words … this could get expensive, and we will pay for it.
David Johnson is a Kamloops resident, community volunteer and self described maven of all things Canadian.