Personal injury claims arise when one party is injured through another party’s actions or omissions. However, not all responsible parties are treated equally under the law. In its 2021 decision of Nelson (City) v. Marchi, the Supreme Court of Canada examined the immunity municipalities have for injuries linked to municipal policy decisions.
Plaintiff Injured in Snowbank After Municipal Snow Clearing
Over the course of two days in January 2015, Nelson experienced heavy snowfall which required its streets to be plowed and sanded. On one street, employees cleared parking lots by pushing snow into high snowbanks behind each parking space. This created a snowbank running the length of the curb, separating the parking lot from the sidewalk.
The day after the parking lot was cleared, the plaintiff parked in one of the plowed parking spots. She attempted to cross over the snowbank standing between her and the sidewalk to reach a business but stumbled when one of her legs fell through the snow. Her foot bent upwards, resulting in serious injury to her leg.
City Claimed Core Policy Immunity Against Injuries Caused by Snow Clearing
The plaintiff sued the city for negligence, and it was agreed that she suffered $1 million in damages. However, the city claimed that the snowbanks left in the wake of its plows qualified as the outcome of “core policy immunity”. “Core policy immunity” is the concept that a body of government cannot breach a duty of care owed to someone if their act or omission was the result of a policy decision. This immunity exists because government needs to be able to make decisions without interference from the courts.
City Successful at Trial, Plaintiff Found to Be “Author of Her Own Misfortune”
At the initial trial of the case, the trial judge found that the city’s decision to create snowbanks between the parking lot and the sidewalk provided the city with core policy immunity. The court reviewed a written document circulated to city staff stating how snow removal should be carried out, including priorities regarding which areas should be cleared first.
Because of this policy, the trial judge held that the city did not owe a duty of care to the plaintiff since it had followed the written and unwritten policies on snow removal. The trial judge found the city did what was reasonable in the circumstances and the plaintiff was the “author of her own misfortune” for attempting to cross the snowbank.
The plaintiff appealed the initial trial decision to the British Columbia Court of Appeal. The Court of Appeal overturned the trial judge’s decision and ordered a new trial, finding the trial judge failed to properly consider the distinction between government policy and operation. The Court of Appeal expressed concern with the trial judge’s willingness to accept the city’s argument that its snow clearing was carried out as usual, without reviewing other municipalities’ snow clearing operations.
Supreme Court of Canada Engaged Anns/Cooper Test for Municipal Duty of Care
The case was appealed before the Supreme Court of Canada, which began its analysis by engaging the Anns/Cooper test. This test, which was previously set out by the Supreme Court, is used to review the duty of care owed by government officials.
The Anns/Cooper test has two parts:
- Is there a prima facie duty of care between the parties? In order words, on the face of the situation, does the municipality owe a duty of care to the plaintiff?
- If so, are there policy concerns that should negate or limit the duty of care? This stage introduces the concept of “core policy immunity”, as claimed by the city.
Duty of Care Exists as Plaintiff Injured on Municipal Property
Under the first stage of the Anns/Cooper test, the Court considers whether the harm experienced by the injured party was reasonably foreseeable. It also determines whether there is a “relationship of proximity” between the city’s failure to take due care and the harm incurred.
The Supreme Court found that there was a duty of care between the plaintiff and the city. She was injured on a municipal street after parking in a municipal parking space. As the city invites people to use its sidewalk and parking spaces, the duty of care was found to extend to the prevention of injuries posed by snowbanks left by municipal snow clearing operations.
SCC: No Core Policy Immunity as Snow Clearing Guided by Budgetary Reasons Alone
The second stage of the Anns/Cooper test requires the Court to review whether there are policy concerns that should negate or limit the duty of care owed by the city. The Court summarized this stage through the following questions:
“Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized?”
The Court determined that the city’s public words supervisor did not have the authority to clear snow in a different fashion. Additionally, there was no evidence that the city had considered whether its snow removal method was the safest possible. Instead, the snowbanks next to the parking spots were created without any attempt to strike a balance between safety and the need for snow clearance. In fact, the method used was decided upon for budgetary reasons alone.
As a result of these findings, the Supreme Court held that the city’s “core policy immunity” defence failed and ordered a new trial.
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