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

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

”It was an angry welcome for Cowichan-Ladysmith MLA Jan Pullinger when she arrived in Lake Cowichan Monday to open her constituency office. She was greeted with some of her long time supporters calling her a ‘liar’. Left to right, Jan Pullinger, Director of Area I, Lois Gage, school trustee Rolli Gunderson, school trustee Pat Weaver, Save our School Committee Chairperson, Tara Daly.” (Lake News/April 17,1996)
Flashback: Garbage, geography and tragedy

Remember these stories from Lake Cowichan?

Tim Schewe
Drivesmart column: Parking permits for people with disabilities

These permits are issued to the person, not the vehicle owner or driver.

Dr. Bernhardt’s freshly planted strawberries. (Mary Lowther photo)
Mary Lowther column: Hoping for a bumper crop of strawberries

Because our new plot gets a lot of sun, maybe strawberries won’t become consumed by wood bugs

Sarah Simpson
Sarah Simpson Column: Newton’s first law of motion

I could have sworn I told them to help each other get unbuckled and to come inside.

Vancouver resident Beryl Pye was witness to a “concerning,” spontaneous dance party that spread throughout social groups at Kitsilano Beach on April 16. (Screen grab/Beryl Pye)
VIDEO: Dance party erupts at Vancouver’s Kitsilano Beach to the dismay of onlookers

‘It was a complete disregard for current COVID-19 public health orders,’ says Vancouver resident Beryl Pye

A syringe is loaded with COVID-19 vaccine at a vaccination clinic run by Vancouver Coastal Health, in Richmond, B.C., Saturday, April 10, 2021. THE CANADIAN PRESS/Jonathan Hayward
B.C. to open up COVID vaccine registration to all B.C. residents 18+ in April

Registration does not equate to being able to book an appointment

Pat Kauwell, a semi-retired construction manager, lives in his fifth-wheel trailer on Maxey Road because that’s what he can afford on his pension, but a Regional District of Nanaimo bylaw prohibits using RVs as permanent dwellings, leaving Kauwell and others like him with few affordable housing options. (Chris Bush/News Bulletin)
Rules against RV living hard on Island residents caught in housing crunch

Regional District of Nanaimo bylaw forcing pensioner to move RV he calls home off private farm land

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

(Black Press file photo).
Multiple stabbings at Vancouver Island bush party

Three youths hospitalized after an assault in Comox

Selina Robinson is shown in Coquitlam, B.C., on Friday November 17, 2017. British Columbia’s finance minister says her professional training as a family therapist helped her develop the New Democrat government’s first budget during the COVID-19 pandemic, which she will table Tuesday. THE CANADIAN PRESS/Darryl Dyck
B.C. finance minister to table historic pandemic-challenged deficit budget

Budget aims to take care of people during pandemic while preparing for post-COVID-19 recovery, Robinson said

Each spring, the Okanagan Fest-of-Ale is held in Penticton. This year, as a result of the COVID-19 pandemic, the festival will not be held. However, beer is still available. How much do you know about this beverage? (pxfuel.com)
QUIZ: How much do you really know about beer?

Put your knowledge to the test with this short quiz

Lord Tweedsmuir’s Tremmel States-Jones jumps a player and the goal line to score a touchdown against the Kelowna Owls in 2019. The face of high school football, along with a majority of other high school sports, could significantly change if a new governance proposal is passed at the B.C. School Sports AGM May 1. (Malin Jordan)
Power struggle: New governance model proposed for B.C. high school sports

Most commissions are against the new model, but B.C. School Sports (BCSS) and its board is in favour

Russ Ball (left) and some of the team show off the specimen after they were able to remove it Friday. Photo supplied
Courtenay fossil hunter finds ancient turtle on local river

The specimen will now make its home at the Royal BC Museum

Most Read