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Kelowna reviewing snow clearing rules in wake of Supreme Court slip-and-fall decision

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Municipalities across Canada are going to be taking a closer look at their snow removal policies this week in the wake of a Supreme Court decision that will leave some open to a deluge of slip-and-fall cases.

The issue came to the forefront when a Nelson, B.C., woman sued the city after she was injured trying to surmount a pile of snow left by plows that had cleared roads following a January 2015 storm.

Taryn Marchi lost her initial lawsuit seeking damages but the BC Court of Appeal overturned the ruling and the City of Nelson went to the Supreme Court.

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Supreme Court justices were then asked to look at the distinction between government core policy decisions, which are immune from liability and negligence claims, and operational decisions that are taken while implementing policy. The latter are subject to liability claims.

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Read more: Ontario to review municipalities’ concerns over ‘liability chill’

In the end, they agreed with the Court of Appeal, and the City of Nelson’s argument that snow removal is a “core policy decision” failed to hold water.

“The city has not proved that its decision to clear the snow from the parking stalls in which (the woman) parked by creating snowbanks along the sidewalks without ensuring direct access to sidewalks was a core policy decision immune from liability in negligence,” the decision by seven Supreme Court Justices reads.

“The city’s decision bore none of the hallmarks of core policy … there is 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 (a city employee’s) the supervisor or her superiors.”

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Ultimately, the decision was operational and not immune from a negligence claim.

The judges said the city owed the woman “duty of care” and that a new trial is required. The new trial would assess if the city breached that duty of care and, as a result, whether it should pay damages.

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Lance Kayfish, risk manager for the City of Kelowna, said that it’s early days but thinks Kelowna is in a good position going forward. Not all municipalities, as was demonstrated in Nelson, will be in the same position.

“In many respects, this is a positive case for local government in Canada,” Kayfish said.

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“It clearly establishes what core policy decisions are. It could be a guidebook for crafting good policy that defines what the service levels and expectations of our citizens should be and we can put the proper resources into the budget, equipment and manpower to create the safest community can.”

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Ultimately, he said, the Supreme Court is saying that good core policy needs to be written down and it needs to be clear why it has been made.

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“It’s still very early on for us to know exactly what implications it will have for the city of Kelowna but we are not planning to do any changes in the way we do snow and ice control,“ Kayfish said.

“We believe we have a high level of service for the residents of Kelowna and we do an excellent job. We will continue to do what we’ve always done, making sure public safety is first and foremost in those operations.”

That said, he noted lessons from other jurisdictions and court decisions “will be taken into account.”

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