From January 4 to 6, 2015, Nelson, BC experienced “heavy snowfall” (by BC standards). On January 6, when Taryn Marchi parked her vehicle in an angled parking space on Baker Street, there was 36 cm of snow on the ground.

The City had already cleared the road and parking spaces, leaving a snowbank between the spaces and the sidewalk, but there were no gaps in it through which the sidewalk could be accessed. Rather than walk on the road beside traffic to the end of the block, Ms. Marchi decided to climb over the snowbank. Unfortunately, on her first step, her foot fell through the snow and struck something, causing it to bend up at an unusual angle. As a result, she was injured, and sued the City for $1 million in damages.

The Supreme Court of Canada has upheld the BC Court of Appeal’s order for a new trial of Ms. Marchi’s case, agreeing with the BCCA that the trial judge had erred at all four stages of the negligence analysis. As a result, the decision can be read as a general refresher on negligence. However, the aspect the Court focused on most heavily was whether the City owed the Plaintiff a duty of care. While a new trial was ordered on the other aspects, on this point, the trial judge’s decision was overturned.

While there is a legal test by which new duties of care can be recognized, this is rarely necessary, as the existence of a duty has already been established for many common scenarios. One such scenario is that of use by individuals of a public road. Since the 1989 SCC case of Just v. BC, so long as a plaintiff establishes that a public actor created a physical risk to which they, as a road user, were invited, they are owed a duty of care.

However, there are two instances in which Public authorities do not owe a duty of care: The first is where they are exempted from liability by a statutory provision and the second is where a “core policy” decision is in issue. In Marchi, at the trial level, the judge found that the City of Nelson was protected from liability for the Plaintiff’s injuries by this “core policy” exception. The BCCA and the Supreme Court, however, found that this was not the case.

The SCC noted the trial judge initially erred in framing the issue too broadly. Rather than considering the City’s clearing of snow from the parking spaces in the 300 block of Baker, by creating snowbanks along the sidewalks, without creating direct access to the sidewalks, he considered the City’s entire process of snow removal.

The Court reviewed the four factors used to identify a “core policy” decision, which it originally laid out a decade ago, in R. v. Imperial Tobacco:

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

After considering each, the SCC found that the City of Nelson’s decision carried none of the hallmarks of a core policy decision. Regarding the first factor: The City’s public works manager testified that she did not have the authority to make a different decision with respect to the clearing of parking stalls. On the second factor: The City’s evidence was that the method of snow clearing was a matter of custom. On the third: the budgetary considerations involved were not high-level, (e.g., departmental), but rather, the day-to-day considerations of individual employees. Finally, on the fourth factor, the City’s chosen method of clearing the parking spaces could be easily assessed using objective criteria (as opposed to value judgments).

Notably, the Court also found that the trial judge’s characterization of the City’s decision as “core policy” had led him to err in the standard of care analysis as well. As such, the Court reiterated that private and government actors’ decisions are both to be measured against would be expected by an ordinary, reasonable, and prudent person in the same circumstances.

It remains to be seen whether the Plaintiff will take the opportunity for a new trial granted by the SCC, or whether this ruling will motivate the parties to reach an agreement out of court. We will be keeping our ears open. In the meantime, though? This decision suggests Municipalities should not (snow)bank on the “core policy” exception saving them from liability. In Imperial Tobacco, the SCC cautioned that this exception covers only a “narrow subset of discretionary decisions”, and now, it has reminded us how very narrow this subset is.

See Nelson (City) v. Marchi, 2021 SCC 41 (CanLII)

Sonya Reid
Sonya Reid

In 2017, Sonya left the rocky peaks of BC behind, to begin climbing a different kind of mountain at law school in Halifax. She worked at SBA after her second year and hasn’t been West of Toronto since. Sonya believes in the unique aspects of both The Six and Vancity and will passionately defend either – as long as you don’t try and convince her that Lake Ontario has waves.
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