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

Penticton bylaw officers tore down a “pretty significantly sized” homeless camp underneath the bridge near Riverside Drive Friday, April 16 morning. (Brennan Phillips - Western News)
Penticton bylaw tears down ‘significantly sized’ homeless camp under bridge

Many residents had made complaints about the camp before it was torn down

Through their Simple Generosity campaign, Valley First has pledged to donate $1 million of community support to British Columbia communities in 2021. (Contributed)
Valley First rewarding Penticton families with innovative way to thrive together

Participants with ‘inspiring ideas’ will receive a surprise for their family, valued at up to $2,500

Elvira D’Angelo, 92, waits to receive her COVID-19 vaccination shot at a clinic in Montreal, Sunday, March 7, 2021, as the COVID-19 pandemic continues in Canada and around the world. THE CANADIAN PRESS/Graham Hughes
110 new cases of COVID-19 in Interior Health

Provincial health officers announced 1,005 new cases throughout B.C.

Ryan Upson’s first BCHL hat-trick propelled the Vees to a 7-1 stomping of the Cranbrook Bucks Thursday April 16) night to improve their record to 7-1-0-0 in this abbreviated pod season. (Cherie Morgan/Cherie Morgan Photography)
Pentiton Vees bounce back with big win over Bucks

Vees score five in under five minutes, win 7-1 over Cranbrook

Black Crow Cannabis is just one of Vernon's many pot shops now open in town. (Jennifer Smith - Morning Star)
Kelowna has highest cannabis fees in Okanagan

Vernon’s 14 stores pay second highest business licence fees

Flow Academy is located at 1511 Sutherland Avenue in Kelowna. (Michael Rodriguez - Capital News)
Black Press Media Weekly Roundup: Top headlines this week

Here’s a quick roundup of the stories that made headlines across the Okanagan, from April 11 to 16

Vancouver Police Const. Deepak Sood is under review by the Independent Investigations Office of B.C. after making comments to a harm reduction advocate Sunday, April 11. (Screen grab)
VIDEO: Vancouver officer convicted of uttering threats under watchdog review again

Const. Deepak Sood was recorded Sunday saying ‘I’ll smack you’ and ‘go back to selling drugs’ to a harm reduction advocate

Provincial health officer Dr. Bonnie Henry prepares a daily update on the coronavirus pandemic, April 21, 2020. (B.C. Government)
B.C.’s COVID-19 infection rate persists, 1,005 new cases Friday

Hospitalization up to 425, six more virus-related deaths

Ford F-350s have been targeted in the North Okanagan by auto thieves since February 2021, Vernon North Okanagan RCMP data shows. (Gene J. Puskar - The Canadian Press/AP file)
Auto thieves target older Ford F-350s in Vernon: RCMP

Vernon Mounties remind all motorists no vehicle is immune to auto crime

The Nautical Dog Cafe at Skaha marina is getting its patio ready in hopes Mother Nature will provide where provincial restrictions have taken away indoor dining. (Facebook)
‘A lot of instability’: B.C. restaurants in layoff limbo

As COVID-19 cases stay high, restaurants in British Columbia are closed to indoor dining

Prime Minister Justin Trudeau looks on as Deputy Prime Minister and Finance Minister Chrystia Freeland responds to a question during a news conference on Parliament Hill in Ottawa, Tuesday, Aug. 18, 2020. THE CANADIAN PRESS/Adrian Wyld
Expectations high as Trudeau Liberals get ready to unveil first pandemic budget

The Liberals will look to thread an economic needle with Monday’s budget

Royal Inland Hospital in Kamloops. (Dave Eagles/Kamloops This Week file photo)
RCMP intercept vehicle fleeing with infant taken from Kamloops hospital

The baby was at the hospital receiving life-saving care

Vernon North Okanagan RCMP were present at the McDonalds in Armstrong Thursday, April 15, 2021. (Tomer Joury - Facebook)
Police handle ‘high-risk’ situation at Armstrong residence

A woman was apprehended and taken to hospital under the Mental Health Act; no charges laid

Since April 4, 38 flights with COVID-19 cases have departed from Vancouver International Airport, while 23 arrived. (Phil McLachlan/Capital News)
Vancouver the largest source of domestic flights with COVID-19 cases: data

This month alone, 38 flights with COVID-19 cases have departed from Vancouver International Airport, while 23 arrived

Most Read