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Let It Snow!

Updated: Apr 3, 2019


Have you ever got frustrated with those city snow removal trucks for piling up snowbanks everywhere, especially for piling up those “windrows” right in front of your driveways, that you end up shoveling? If your answer is yes, you need to know the following:


1. It’s winter.

2. If the city doesn’t clean up, you may not be able to even go to work.


But imagine slipping/tripping and falling and getting injured on or around one of these. Can the injured person sue the city? One would think so. But does the injured person has a winning argument under the traditional tort analysis? Probably! But guess what! It doesn’t matter. Because the City is Immune. Wonder why?


In Barratt v. Corporation of North Vancouver, [1980], the Supreme Court of Canada confirmed:


The Municipality, a public authority, exercised its power to maintain Marine Drive. It was under no statutory duty to do so. Its method of exercising its power was a matter of policy to be determined by the Municipality itself. If, in the implementation of its policy its servants acted negligently, causing damage, liability could arise, but the Municipality cannot be held to be negligent because it formulated one policy of operation rather than another.


The case related to injuries due to a pothole that was not discovered in routine inspections. Clearly, one cannot argue that the city should have inspected it more often. The only argument that could be made is that remedial action was not taken when the city knew about the pothole (or ought to have known based on the inspection schedule) or the city employees were negligent.


In Just v. British Columbia, [1989], the Supreme Court of Canada stated:


Government agencies may be exempt from the application of the traditional tort law duty of care if an explicit statutory exemption exists or if the decision arose as a result of a policy decision. Whether or not a decision is characterized as a policy decision or as an operational decision rests on the nature of the decision and not on the identity of the actors. Generally, decisions concerning budgetary allotments for departments or government agencies should be classified as policy decisions. A policy decision may be open to challenge on the basis that it is not made in the bona fide exercise of discretion.


Similar issues were discussed at length in a recent decision by the Supreme Court of British Columbia, where the plaintiff brought an action against the city due to injuries sustained when she was attempting to walk over a snowbank.


The facts of the case, Marchi v. Nelson (City of), [2019], are quite straightforward:


Accident

The plaintiff got injured while she was attempting to walk over a snowbank.


Positions

Plaintiff

The city is liable for breach of duty of care under the traditional tort analysis.


Defendant

The city did not owe a duty of care to the plaintiff in these circumstances because “the decision respecting plowing and removal of snow and snowbanks on Baker Street were bona fide policy decisions and as such the City owed no duty of care.”


Policy Decisions v Operational Decisions

It may sometimes be difficult to analyse the difference between whether a decision was a policy decision or whether it accounted as an operational decision.


In Just v. British Columbia, [1989], the Supreme Court of Canada confirmed:


In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions.


It must be noted that the decisions must be bona fide policy decisions, failing which, the traditional tort analysis would apply.


In Brown v. British Columbia (Minister of Transportation and Highways, [1994], the Supreme Court of Canada clarified on the “Operational Decisions” as:


The operational area is concerned with the practical implementation of the formulated policies, it mainly covers the performance or carrying out of a policy. Operational decisions will usually be made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.


Thus, due to budgetary constraints, if the city decides to inspect a sidewalk only once in two weeks rather than inspecting it every week, that is a policy decision. If someone gets injured due to a pothole because the city was not aware of that pothole due to less frequency of inspections, the traditional tort analysis may not apply, and the city may be held immune from any liability.


Similar is the case with snow removal activities carried out by the city. But again, the decisions must be bona fide and rational.


City’s Policy on Snow Removal

As one may expect, major routes, highways, downtown core areas would be on the priority list for the city for snow removal purposes. Thus, those snowbanks and windrows are not on the priority list for the city when they are faced with inclement weather conditions. This is considered as a “Policy Decision” guided by budgetary and economic factors.


Analysis

As discussed above, government agencies do not owe a duty of care in tort if it can be established that the actions taken by them were bona fide policy decisions, unless these decisions were made in bad faith or irrational without proper exercise of discretion; see Brown v. British Columbia (Minister of Transportation and Highways, [1994].


The city experienced heavy snowfall during the period when this incident occurred. They did everything possible, to the best of their efforts, keeping in mind budgetary constraints, available equipment, manpower and priority areas. Thus, they could not have done anything different on the day the incident occurred, considering the snow removal policy in place, that could have prevented the incident from happening. They acted reasonably at all material times. The court stated:


The City followed its policy decisions. The City could not remove the windrows from downtown without creating a dangerous situation on the tops of the steep and snowy streets in Nelson in the winter as it would mean diverting equipment from plowing and clearing in favour of removing snow from downtown.


The court dismissed the action, stating, inter alia,


The City followed its policy. The policy was to clear snow in accordance with long established practices. The attempt to compare the practices in Nelson with those of other places was not very useful. Each of the municipalities faced difficult conditions. Nothing in the evidence showed that the policy of the City was unreasonable or the result of a manifest lack of appreciation for the risks involved. The policy is rational. It is very difficult to fault the City on a policy basis.


The court also completed traditional tort analysis based on common law and occupier’s liability act (practically no difference in the analysis), holding that the claimant was the author of her own misfortune, as at all material times she was aware of the risks involved and voluntarily assumed the risk, even though she had alternate options to use an alternate route.


Takeaways

When dealing with a government agency, try to keep yourself in their feet before pursuing an action. One should be thankful to these people who work 24x7 to provide us with safer environment, but it is only so much they could do. Let’s appreciate that fact. Also, if you decide to pursue an action against the city, or if you are representing the city, make sure your investigation includes the facts surrounding the policy decisions made by the city and whether those could be invoked as one of the defenses, making city immune from liability from liability under the traditional tort analysis.

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