City of Nelson v. Taryn Joy Marchi
(British Columbia) (Civil) (By Leave)
Torts - Negligence, Crown liability - Torts - Negligence - Liability - Crown Liability - Policy decision or operational decision - Respondent’s foot dropped through snowbank left by appellant city’s work crews - Were the City’s decisions with respect to snow clearance and removal during the early January 2015 snow event policy decisions or operational decisions - What is the appropriate standard of appellate review to be applied to a trial judge’s finding that a particular decision (or suite of decisions) is a policy or operational decision - In the event that the impugned decisions are not immune from tort liability as policy decisions, did the City breach the applicable standard of care - Is the trial judge’s finding that the respondent was the sole proximate cause of her own injuries a complete defence to her claim, despite the removal of the last clear chance doctrine by operation of the Negligence Act, R.S.B.C. 1996, c. 333.
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There was a heavy snowfall in Nelson, British Columbia overnight on January 4-5, 2015. The appellant City of Nelson’s work crews plowed the main commercial street in Nelson early in the morning of January 5. They did so in a manner that created snowbanks or “widrows” along the curb and onto the sidewalk. The respondent, Ms. Marchi parked her car in an angled parking spot on the north side of main commercial street. When Ms. Marchi left her car, she encountered the snowbank that had been left by the City’s work crews a day and a half previously. Seeing no other means of getting onto the sidewalk, she tried to cross the snowbank. As she did so, her right foot dropped through the snowbank, and she suffered serious injury to her leg. Ms. Marchi commenced an action against the City, alleging that it had been negligent in leaving widrows along the road, leaving no space for pedestrians to cross from their car onto the sidewalk. The trial judge dismissed Ms. Marchi’s action in negligence on the grounds that the City’s decisions regarding plowing activities were bona fide policy decisions, which were governed by factors including budgetary, social and economic factors, including the availability of manpower and equipment. As such, the trial judge concluded that the City’s decisions were immune from liability. The trial judge also concluded that, in any event, Ms. Marchi understood and accepted the risk of walking into the snowbank, with inappropriate footwear, and failed to test the snow to determine whether it could bear her weight. The Court of Appeal allowed the appeal, on the grounds that the trial judge had made significant errors of fact and law, which had coloured his finding that the City’s snow clearing activities were immune from liability. The court allowed the appeal, set aside the order dismissing Ms. Marchi’s action, and ordered a new trial.
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