In Nelson (City) v. Marchi, 2021 SCC 41, the plaintiff was injured after parking her car while attempting to cross a snowbank blocking the parking area from a nearby sidewalk. The snowbank was created by the City’s snowplows when they cleared the parking area in accordance with the City’s snow removal policies.  The City failed to clear an access path to the sidewalk.

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Case History

The trial judge dismissed the plaintiff’s claims against the City, finding that the City did not owe the plaintiff a duty of care because its snow removal decisions were core policy decisions.  Alternatively, the trial judge found that the City did not breach the standard of care because the snowbank did not pose an objectively unreasonable risk of harm and, as a further alternative, the City’s alleged negligence did not cause the accident.

The British Columbia Court of Appeal unanimously overturned the appeal on all three findings and ordered a new trial.

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Supreme Court Decision

The Supreme Court of Canada dismissed the City’s appeal and upheld the order for a new trial after finding that the plaintiff’s claim fell within the category of cases for which a duty of care was established in Just v. British Columbia, 1989 CanLII 16 (S.C.C.), [1989] 2 S.C.R. 1228.The plaintiff’s case met the following factors uniting the cases under the Just category: a public authority has undertaken to maintain a public road or sidewalk to which the public is invited; and the plaintiff alleged that they suffered a personal injury as a result of the authority’s failure to maintain the road or sidewalk in a reasonably safe condition.

Where an established duty of care applies, as in this case, a full two-stage Anns/Cooper analysis is unnecessary. However, the core policy analysis in one case does not necessarily apply to others in the same category, so the court went on to analyze the City’s claim that its snow removal decisions were core policy decisions.

The Court set out the following non-exhaustive list of factors relevant to identifying core policy decisions:

1. the level and responsibilities of the decision maker;
2. the process by which the decision was made;
3. the nature and extent of budgetary considerations; and
4. the extent to which the decision was based on objective criteria.

Applying these factors to the City’s claim for immunity, the Court found that the City failed to show that the way it plowed the parking area was a result of a core policy decision.

The Court went on to find that the Trial Judge had also erred with respect to its findings of standard of care and causation.  While the Court made a final determination on the issue of duty of care, the issues of standard of care and causation required a new trial