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LIABILITIES OF MUNICIPALITY - Duty of care - Property maintenance and operation - Sidewalks

Thursday, February 13, 2020 @ 9:01 AM  

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Appeal by the plaintiff from the dismissal of her action for damages for personal injuries suffered in a slip and fall. The appellant suffered a serious injury to her leg after she slipped in a snowbank created by the City’s work crew who plowed the street after a heavy snowfall. The appellant testified there was no other access from the street to the sidewalk except through the snowbank. The trial judge found the City’s actions were the result of policy decisions and that it owed no duty of care to the appellant. He further found the appellant was the author of her own misfortune.

HELD: Appeal allowed; new trial ordered. The trial judge erred in the way he addressed the City’s duty of care, the standard of care and the appellant’s own negligence. The trial judge failed to identify the types of governmental decisions that were insulated from judicial scrutiny. It was an error to simply accept the City’s submissions that all decisions made with respect to snow removal were policy decisions without engaging in the analysis called for by Just v. British Columbia. Certain of the impugned decisions of the street clearing crew might properly have been characterized as operational in nature. It was not open to the trial judge to treat his finding that the appellant assumed the risk of crossing the snowbank as dispositive of the question of the City’s negligence. Such reasoning was clearly precluded by s. 8 of the Negligence Act. The trial judge did not appropriately consider and identify the acts or omissions on the part of the City that should have been subject to judicial scrutiny and did not correctly apply the standard tort analysis in relation to any such acts or omissions.

Marchi v. Nelson (City of), [2020] B.C.J. No. 1, British Columbia Court of Appeal, P.M. Willcock, G.J. Fitch and J.J.L. Hunter JJ.A., January 2, 2020. Digest No. TLD-February102020011