The Supreme Court of Canada. Photo: Supreme Court of Canada photo gallery

The Supreme Court of Canada. Photo: Supreme Court of Canada photo gallery

2021 YEAR IN REVIEW: Supreme Court of Canada hears Nelson snowbank case

Taryn Marchi won a stunning decision against the city

A woman who sued the City of Nelson for suffering an injury while crossing a snowbank was vindicated in October by Canada’s highest court.

On Jan. 6, 2015, after heavy snow had fallen on Nelson, Taryn Joy Marchi injured her knee while attempting to step through a snowbank on the 300 block of Baker Street in running shoes.

Marchi sued the City of Nelson for negligence because there had been no openings through the snow to the sidewalk, which led community derision and an initial defeat at her first trial when Supreme Court of B.C. Justice Mark McEwan ruled in the city’s favour in March 2019.

McEwan, who ruled Marchi was “the author of her own misfortune,” said the city could not be held liable for damages for policies created in good faith like snow clearing.

But McEwan’s ruling provided an opening for Marchi. At the B.C. Court of Appeal in January 2020, three judges found errors in McEwan’s ruling and said he should have considered the difference between written municipal policies and daily operational decisions made by city crews.

The city in turn appealed, and took the case to the Supreme Court of Canada.

That Marchi had been injured was never in question. The seven Supreme Court judges instead had to consider if core policies, like snow plowing city streets, are immune from negligence claims.

There was plenty of interest in the case from outside Nelson. Intervenors included the cities of Toronto and Abbotsford as well as the Attorney Generals of B.C., Alberta, Ontario and Canada, with each arguing in Nelson’s favour.

When the Supreme Court made its decision on Oct. 21, the result was stunning.

Seven judges ruled unanimously in favour of Marchi. While core policies would remain protected from liability under Canadian law, judges decided the City of Nelson’s snow removal operations were flawed.

“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.

McEwan’s initial judgement was also again used in Marchi’s favour, with the Supreme Court ruling he should have considered best practices in neighbouring municipalities.

There was also legal precedent to draw from. In 1982, a driver was injured and his daughter killed near Whistler when a heavy snowfall led to a boulder falling on their car. Just v. British Columbia (1989) found the provincial government had a duty of care to maintain its highways.

Marchi’s march to justice isn’t over yet though.

The Supreme Court decision added an order that a new trial be held. Although it hasn’t been scheduled, the trial will re-examine Nelson’s snow clearing operations as well as Marchi’s injury.

The case was also the City of Nelson’s second in front of the Supreme Court of Canada in four years after it won Nelson v. Mowatt in 2017 over possession of a lakeside property.

2021 Year in Review