So you Slipped and Fell on a Public Street or Sidewalk – Can You Sue the City?

The short answer is: maybe, it depends.

The Supreme Court of Canada, in reasons for judgment indexed at Nelson (City) v. Marchi, 2021 SCC 41, has given recent and much needed guidance to those who have injured themselves while treading on public roadways and sidewalks and want to hold the municipality responsible for the poor maintenance causing their injury.

Taryn Joy Marchi, the plaintiff in this case, was injured while attempting to cross a snowbank created by the City of Nelson in British Columbia. She sued the city for negligence. Dismissing her claim, the trial judge concluded that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were “core policy decisions.”

Traditionally, the courts – like the trial court in Ms. Marchi’s case – have been hesitant to hold municipalities responsible for slip and fall actions because how cities make decisions about what to do with (and what not to do with) scarce road maintenance resources may be key to its institutional role. The reasoning goes, “The legislative and executive branches have core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight.” In other words, it is not the courts’ job to tell the government how to its job and how to spend its money.

The Supreme Court of Canada undertook a duty of care analysis on the facts of Ms. Marchi’s case. The Court accepted that the city owed duties to members of the public like Ms. Marchi as it, effectively, had invited members of the public to use the parking stalls and the street to access the businesses along the street.

The task for the city was to show the Court that it was immune from liability because a core policy decision was at issue. This would negate its duty of care to the public for the road maintenance at issue. It did not meet the burden. This did not mean that Ms. Marchi “won” as the Court sent back the standard of care and causation assessments to the trial courts in British Columbia. The new trial court will have the benefit of a newly articulated set of factors to aid its determination of whether a core policy decision is indeed present and determinative of this case:

Core policy decisions encompass economic, social and political factors. They are neither irrational nor taken in bad faith. The courts will consider (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. Protecting the legislative and executive branch’s core roles serves as an overarching guiding principle for how to weigh the factors. The mere presence of budgetary, financial, or resource implications does not determine whether a decision is core policy. Further, the fact that the word “policy” is found in a written document is not determinative of the question. Implicit in these factors is the distinction between government policy and the implementation or operation of it.

In Ms. Marchi’s case, the city’s decision to create snowbanks through its plowing bore none of the hallmarks of core policy. Although the extent to which the city’s public works supervisor was closely connected to a democratically‑elected official was unclear from the record, she disclosed that she did not have the authority to make a different decision with respect to the clearing of parking stalls (factor 1). In addition, there was no suggestion that the method of plowing the parking stalls resulted from a deliberative decision involving any prospective balancing of competing objectives and policy goals by the supervisor or her superiors. There was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks; the city’s evidence was that this was a matter of custom (factor 2). Although it was clear that budgetary considerations were involved, these were not high‑level budgetary considerations but rather the day‑to‑day budgetary considerations of individual employees (factor 3). Finally, the city’s chosen method of plowing the parking stalls could easily have been assessed based on objective criteria (factor 4).