Nelson’s snowbank injury case heard by Supreme Court of Canada – Williams Lake Tribune


A hearing was held this week in a Nelson case that went to the country’s highest court.

The nine justices of the Supreme Court of Canada heard arguments from lawyers for City of Nelson v. Taryn Joy Marchi, but has not yet made a decision.

Taryn Marchi, then 28, injured her knee while trying to get over a snowbank in the 300 block of Baker Street on January 6, 2015. She was sent to Kootenay Lake Hospital, then transferred to Kelowna.

At the time, the city was working to clear the streets after a heavy snowfall.

Marchi sued the city, saying his teams should have left openings in the snowbank to allow safe access between parked cars and the sidewalk, and that lack of access led to his injury.

She lost in the British Columbia Supreme Court in Nelson, where Justice Mark McEwan said she was “the author of her own misfortune.” He said the city cannot be held responsible for damages if the policies that guide activities like snow removal were created in good faith and were followed.

Marchi appealed to the British Columbia Court of Appeal, which ruled in her favor and returned the case to the British Columbia Supreme Court for a new trial, as she said there had errors of fact and law in McEwan’s decision.

But there was no new trial, as the city appealed that decision – the decision to send him 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 responsible for the injury.

If Marchi wins, it could cost the city dearly, but the deal could also set a precedent for all Canadian municipalities.

“We are acting on the advice of our insurers,” Nelson’s city manager told the Nelson Star when asked in August why the city is appealing the case.

Under the current state of the law in Canada, municipal police forces are immune from all liability. You cannot sue a city for a policy it has established in good faith.

But a city could be held accountable if the action in question was not the policy itself but the way it was implemented by city workers.

The City’s written policy on snow removal, as presented to the court, gives a priority sequence for snow removal and sanding of city streets. But there is no clear indication of where to put the snow when it is cleared, or if and how to create a pedestrian crossing around or through the snow banks, which could be a bet. implemented, not a policy, and therefore immunity from liability.

The delicate distinction between policy and implementation was one of the legal issues at stake at the Supreme Court of Canada on March 25.

At the Supreme Court, judges do not hear witnesses or evidence, but review the reasons for lower court judgments, with lawyers for each party limited to a maximum hour of oral presentation with supporting documents. The cases are posted on the Court’s website.

The main issues on which the tribunal was asked to decide were as follows:

1. Were the city’s snow removal actions during this blizzard based on written municipal policies, or were they an implementation of a policy?

2. Even if these were political decisions, and therefore exempt from accountability, there is another question: Did the city violate the appropriate standard of care expected of a municipality?

3. Were the reasons for the city given by McEwan in the first BC Supreme Court trial sufficient?

Greg Allen, lawyer for the City of Nelson, argued that the attempt to distinguish between political decisions and operational decisions is ambiguous and should not apply, and that all decisions made regarding snow removal on that day were unique to the situation. They stemmed from city policies and were therefore immune to liability, he said.

He added that while the city was not immune from liability, it nonetheless acted reasonably and upheld an acceptable standard of care.

Danielle Daroux, lawyer for Marchi, told the court that the city created a danger by putting a snowbank between the parking lots and the sidewalk and could instead have put the snow elsewhere, such as in one of the parking lots or between traffic. and the parking spaces, or he could have dug trails through the snowbank. Not doing such things puts the public at risk, she said.

Daroux said the snowbank decisions were implementation decisions because snow removal and the location of snowbanks are not clearly included in the city’s snow removal policy, and therefore the city may be held responsible.

The attorneys general of British Columbia, Alberta, Ontario and Canada all intervened in the case (interveners have five minutes each) to defend the concept of exempt municipal policies.

A date for a decision has not been announced.

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