The Supreme Court of Canada in Ottawa. Photo: Adrian Wyld/The Canadian Press

The Supreme Court of Canada in Ottawa. Photo: Adrian Wyld/The Canadian Press

UPDATED: Woman injured in Nelson snowbank wins new trial against city: Canada’s top court

Taryn Marchi was hurt stepping over a plowed snowbank in 2015

The Supreme Court of Canada has ruled unanimously in favour of a Nelson woman who was injured walking through a snowbank plowed by the city in 2015.

Seven judges with the highest court in Canada decided against the city Thursday (Oct. 21) after hearing arguments on March 25.

The decision wasn’t whether Marchi was injured — both parties agreed she was. Instead, the seven judges had to decide if a municipality’s core policies, such as the obligation to maintain its streets, are immune from negligence claims.

Core policies are protected from liability in Canadian law. The ruling Thursday affirmed that, but found fault with the City of Nelson’s snow removal operations. It also said a new trial should be ordered because the city owed Marchi a duty of care, or a responsibility to avoid acts or omissions that could cause harm.

“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 decision read.

Marchi and her lawyer Danielle Daroux declined to comment when contacted by the Nelson Star after the ruling was released.

The Municipal Insurance Association of British Columbia, of which the City of Nelson is a member, called the result disappointing but added it will provided direction in future cases.

“This decision provides welcome clarity to what is sometimes been a difficult area of law,” said CEO Tom Barnes in a statement. “It will help us be true to our principles and more accurate in the advice we provide our members.”

The lawsuit began with a heavy snowfall in January 2015. The city had cleared Baker Street, its main downtown thoroughfare, and created a snowbank along the curb and onto the sidewalk.

Marchi, then 28, parked her car on Baker on Jan. 6 and attempted to step through the snowbank on the 300 block of Baker after seeing no cleared entry to the sidewalk.

She suffered a serious injury to her right foot, and then sued the city for negligence because it didn’t leave openings to permit safe access to the sidewalk.

In the Supreme Court ruling, judges cited Just v. British Columbia (1989). That case, in which a driver was injured and his daughter killed in 1982 en route to Whistler, after heavy snowfall led to a boulder falling onto their car as they were stopped in traffic, eventually found the provincial government had a duty of care to maintain its highways.

Marchi’s case, the court decided, fell within the scope of the precedent.

“She suffered significant physical injury on a municipal street, and by plowing the parking spaces on the street where [Marchi] parked, the city invited members of the public to use them to access businesses along the street.”

Marchi’s case was first heard at B.C. Supreme Court. Justice Mark McEwan ruled in the city’s favour, writing Marchi was “the author of her own misfortune” and that the city cannot be liable for damages for policies such as snow clearing that are created in good faith.

Marchi pursued her case and won at the B.C. Court of Appeal, which ruled McEwan had made errors of fact and law in his decision and said there should be a new trial.

The Supreme Court of Canada also took a dim view of McEwan’s judgement and causation analysis of the original case, stating he “failed to engage with the practices of the neighbouring municipalities.”

A new trial, which was put off after the city appealed to the Supreme Court of Canada, will examine Nelson’s snow clearing operations. Plowing and sanding are prioritized on city streets, there is no guidance for where to put the plowed snow or if passages should be cleared through a created snowbank. It would also re-assess Marchi’s injury, which McEwan had said was her own fault.

There were eight intervenors in the case, which is available online, each of whom defended city policies being immune from liability. They included the City of Toronto, the City of Abbotsford, and the Attorney Generals of B.C., Alberta, Ontario and Canada.

@tyler_harper | tyler.harper@nelsonstar.com

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