Personal Injury Update
By: Andrew Spurgeon
In this Personal Injury Update, I want to discuss two different cases. The first is a very recent Supreme Court of Canada case called: Nelson (City) v. Marchi and the second is from this past summer called: Moore v. 7595611 Canada Corp.
Nelson v. Marchi
Winter is upon us. This is the time of the year where plaintiff personal injury lawyers turn their minds to suing the City for not properly plowing, salting and sanding the roadways and sidewalks. The Supreme Court had just made their task this winter a bit easier in Nelson v. Marchi.
After a heavy snowfall in January of 2015 in Nelson BC, Ms. Marchi went downtown to do some business. She parked on one of the main commercial streets in town in an angled parking spot. City plowing crews had plowed both the road and sidewalks in such a manner as to create large mounds or berms of snow (called windrows) separating the cars parked on the road from the sidewalk.
With no obvious way to get to the sidewalk from her parked car, Ms. Marchi decided to climb over the snowbank to get to the sidewalk. As she stepped onto the snowbank, her foot dropped through the snowbank resulting in a serious injury to her leg. She sued.
At trial, the trial judge determined that the City of Nelson did not owe Ms. Marchi a duty of care because snow removal decisions were “core policy” decisions of the municipality. Alternatively, assuming a duty of care existed, the trial judge attributed fault to Ms. Marchi because she should not have attempted to walk over the snowbank and she did not test the snow bank before she stepped on it wearing the wrong footwear.
The plaintiff appealed and the BC Court of Appeal determined that the trial judge had erred in all respects of their analysis. The City appealed to the Supreme Court where they upheld the judgment of the BC Court of Appeal.
The most important aspect of the case is the Court’s discussion related to the determination of where and in what circumstances a municipality may assert immunity from liability because it has exercised a “core policy” determination to do or not do some sort of thing which might otherwise violate a duty of care in common law. The focus of analysis in the case was identifying the how to distinguish the policy determination function of a municipal government from the operational implementation function of a municipal government. A municipality can be shielded from liability for the effect of core policy decisions but not the effects of operational decisions.
In the case of the City of Nelson, was the decision to plow snow on the streets and sidewalks in such a fashion as to create these windrows or berms over curbs, which essentially acted as barriers between people alighting from their cars on the street to the sidewalk where they were expected to go, a “core policy” decision to which immunity attaches or an “operational decision” to which it does not?
The Supreme Court outlined a four-factor test to determine whether a municipal government’s decision is “policy” or “operational”:
Identify the level and responsibilities of the decision-maker;
Identify the process by which the decision was made;
Isolate the nature and extent of budgetary decisions in making the decision; and
Determine the extent to which the decision in question was based on objective criteria.
Cognizant that the purpose of immunity from liability in these circumstances is “protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers” the test advanced by the Court provides guiding principles in how to weigh factors in the analysis.
In the Nelson case, the decision to plow the snow in the manner City staff did on the road in question “bore none of the hallmarks” of a core policy decision. The Court in looking at how the decisions were made at the City in respect of the manner in which snow was plowed, stated:
“Although the extent to which the supervisor was closely connected to a democratically-elected official is 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 (the first factor). In addition, there is no suggestion that the method of plowing the parking stalls on Baker Street resulted from a deliberative decision involving any prospective balancing of competing objectives and policy goals by the supervisor or her superiors. Indeed, there was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks; the City’s evidence is that this was a matter of custom (the second factor). Although it is clear that budgetary considerations were involved, these were not high-level budgetary considerations but rather the day-to-day budgetary considerations of individual employees (the third factor).”
Ultimately, the Supreme Court held that the City of Nelson’s actions in respect of its snow clearing practices on the date in question were operational in nature, not policy decisions. Consequently, standard principles of establishing a duty and standard of care apply pursuant to the cases of Anns v. London Merton Borough Council and Cooper v. Hobart.
In this framework, the first question to ask is whether the circumstances of the case generally establish a prima facie duty of care? In other words, is harm to the plaintiff a reasonably foreseeable consequence of the conduct of the defendant if reasonable care is not taken by the defendant? If the answer is yes, you can move to the second question which is to ask, whether there are residual policy concerns outside the relationship of the parties which should negate the prima facie duty of care? In considering this question, if there is a prior analogous decision establishing liability, the analysis should come to an end. A duty of care will exist as one was established in the case of Just v. British Columbia.
Moore v. 7595611 Canada Corp.
This case flows from the worst, most dreadful nightmare a parent can have. In this case the plaintiffs’ daughter, Alisha was living in a basement apartment with inadequate means to escape.
There was a fire and Alisha was trapped. She suffered ghastly injuries. She survived for a time at the Sunnybrook Hospital Burn Unit.
“Alisha’s parents witnessed the terrible reality of seeing their only child with third-degree burns over half of her body and parts of her body disintegrating before their eyes. They also watched as
Alisha went into cardiac arrest on multiple occasions. Ultimately, the parents had to make the excruciating decision to remove their child from life support given that a brain scan showed that
Alisha was without brain activity.”
The damages awarded for Alisha’s parents were $250,000 each for mental distress and $250,000 each for loss of care guidance and companionship. The defendant appealed arguing that the allocations for damages made by the jury were “too high”.
The Court of Appeal asserted that the case of To v. Toronto School Board which did characterize $100,000 as the high end of the accepted range for loss of care, guidance and companionship damages did not operate to establish a “cap”. There being no cap on such non-pecuniary damages, where there is no error in respect of the judge’s instructions to the jury, an appellate court should not interfere with a jury’s assessment of non-pecuniary damages unless:
The jury’s assessment “shocks the conscience of the court” or;
The jury’s assessment is so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss.
In this case, the Court of Appeal concluded that the assessments of damages were not improper and upheld them. The Court highlighted the fact that the assessment of damages in each case is specific to that case including the family relationships involved in each case. In the case of Alisha and her parents, Alisha was 24 years old, and was an only child who was devoted to her parents and communicated with them daily, despite living away from home. Her father was particularly dependent on Alisha for emotional support as she helped him through some mental health challenges. The Court concluded that as she was getting older she was starting to give more support to her parents than she was receiving from them.
Given the facts of the relationship between Alisha and her parents, the fact she was an only child, the means by which she died, the burden on her parents of having to decide to end life support, the gruesome injuries Alisha experienced and her parents witnessed and the supportive role Alisha had in the lives of her parents, the Court concluded that though the assessment of non-pecuniary damages was high, it was not inordinately high and it did not shock the court’s conscience.
Andrew J. Spurgeon is a partner at Ross and McBride LLP. He is also an Elected Bencher of the Law Society of Ontario, and the Chairman of the Board of Directors LawPRO, which is the sole insurance company providing primary liability coverage to all 28,000 lawyers in private practice in Ontario.
He can be reached at:
Ross & McBride LLP
1 King St W, Hamilton, ON
Email: [email protected]
1 2021 SCC 41
2 2021 ONCA 459
3 2021 SCC 41 at paragraph 83
4  AC 728
5 2001 SCC 79
6  2 SCR 1228
7 2021 ONCA 459 at paragraph 3
8 (2001), 204 DLR (4th) 704 (Ont. CA)
9 Adjusted for inflation, $100,000 at the time of the To case is approximately $150,000 today.
10 Young v. Bell, 2006 SCC 3 at paragraph 66 and Hill v. Church of Scientology,  2 SCR 1130 at paragraph 163
11 To v. Toronto School Board, (2001), 204 DLR (4th) 704 (Ont. CA) at paragraph 31; Fiddler v, Chiavetti, 2010 ONCA 210; Volkes Estate v. Palmer 2012 ONCA 510