Supreme Court says people can sue cities over snow removal activities that cause injury

The Supreme Court of Canada has unanimously ruled that municipal snow removal activities are not immune from negligence and liability claims, a decision that could affect cities across the country.

The case at the centre of the decision is a lawsuit brought against the City of Nelson, B.C. by Taryn Joy Marchi, who injured her leg while climbing over a snowbank in 2015.

Marchi lost her initial suit but the B.C. Court of Appeal overturned the ruling and the city appealed to the Supreme Court.  

The key question the seven Supreme Court justices were tasked with deciding was the legal distinction between "core policy decisions" made by governments — which are immune from liability and negligence claims — and "operational decisions" that are taken while implementing policy, which are subject to liability claims. 

The court dismissed the City of Nelson's appeal, dismissing the city's argument that snow removal is a "core policy decision" and is therefore immune from negligence claims. The court ordered a new trial.

"The City has not met its burden of proving that Ms. Marchi seeks to challenge a core policy decision immune from negligence liability," the court ruled. "While there is no suggestion that the City made an irrational or bad faith decision, the City's 'core policy defence' fails and it owed Ms. Marchi a duty of care. 

"The regular principles of negligence law apply in determining whether the City breached the duty of care and, if so, whether it should be liable for Ms. Marchi's damages."

The case is significant because it could affect cities across the country. The attorneys general for Canada, Alberta, B.C. and Ontario were all interveners in the case, as was the City of Toronto and the City of Abbotsford B.C.

Core policy vs. operational decision

The ruling said that core policy decisions are choices made by cities based on broad public policy considerations such as economic, social and political factors.

The City of Nelson argued that its snow removal decisions are dictated by the availability of financial resources, saying the snowfall of Jan. 4 and 5 was the first of the year and significant enough to consume 20 per cent of the city's annual snow removal budget.

Marchi's lawyers argued that while clearing snow is a general policy, decisions made about which parking stalls should be cleared and whether paths should be cut to allow pedestrians to access the sidewalk were not detailed in any policy document — and were therefore "the operationalization of implementation of snow removal."

The Supreme Court sided with Marchi, saying that the decision to create snowbanks without clearing pathways for sidewalk access was not a matter of core policy.

The top court said that the original trial judge's decision in the case, which found that the "city's actions were the result of policy decisions," was too broad and merged together all of the City of Nelson's snow removal "decisions and activities" under the policy umbrella.

"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," said the Supreme Court decision.

City invited people to use sidewalk: Supreme Court

When Marchi injured her leg on Jan. 6, 2015, snow removal services in Nelson had cleared a block of angled parking spaces in the city centre, pushing the snow from the spaces to the curb and creating a long snowbank separating the parking spaces from the sidewalk.

The city did not clear paths through the snowbank to allow pedestrians to get from their parking spots to the sidewalk.

"By plowing the parking spaces on Baker Street, the City invited members of the public to use them to access businesses along the street," the ruling states. "The plaintiff was attempting to do just that when she fell into a snowbank that had been created by the City during snow removal."

In the initial court case, the judge ruled that snow removal was a core policy decision, that Marchi assumed the risk when she tried to climb over the snowbank and that she was the "author of her own misfortune."

The City of Nelson argued that it was not reasonably foreseeable that someone living in a city prone to heavy snowfall would behave as Marchi did.

The Supreme Court disagreed, saying that 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.