On August 20, 2020, the Supreme Court of Canada granted leave to hear a future appeal in the matter of Marchi v. City of Nelson.
This case arose from an incident in Nelson, BC in January 2015. The City was experiencing a heavy snowfall and on the early morning of January 5 sent out City crews to plow the main downtown area. The plowing created snowbanks along the curb and onto the sidewalk of the streets. On January 6, 2015, Ms. Marchi parked her car along Baker Street in downtown Nelson and attempted to make her way to the sidewalk. Seeing no other convenient way of getting to the sidewalk, she attempted to walk over the snowbank left by the City’s work crews, which was approximately 2’ high, 2-3’ wide, and appeared to run the length of the block. As Ms. Marchi attempted to cross the snowbank, her right foot sunk deep into the snow and she suffered a serious injury to her leg. Ms. Marchi sued the City, alleging it was negligent in leaving the snowbanks along the road without spaces for pedestrians to cross from their car onto the sidewalk.
A liability trial was held in late 2018. The BC Supreme Court decision (found here) dismissed Ms. Marchi’s action in negligence on the basis that the City’s plowing activities were based on bona fide policy decisions, dictated by the availability of manpower and resources. As such, the trial judge concluded the City did not owe a duty of care in the circumstances. The trial judge also found, in any event, that Ms. Marchi was the author of her own misfortune and had assumed the risk of crossing the snowbank.
The trial judge’s decision was appealed to the BC Court of Appeal. Earlier this year, the Court of Appeal (reasons here) set aside the trial decision and ordered a new hearing. The Court of Appeal found that the trial judge had erred in finding that all of the City’s snow removal decisions were policy decisions without engaging in the analysis to differentiate between “policy” and “operational” choices. The trial judge’s errors had coloured his subsequent findings and, accordingly, a new trial was necessary.
It will be interesting to see what aspects of the Court of Appeal’s decision the Supreme Court of Canada decides to comment on or critique when the further appeal is heard. Will the Supreme Court of Canada strive to clarify what types of local government decisions are insulated from judicial scrutiny? Only time will tell. We will be sure to update this post once the Supreme Court of Canada’s decision has been rendered.