2021 has been an interesting year with respect municipal liability and the law of negligence. In October, the Supreme Court of Canada released its decision in Nelson (City) v. Marchi, 2021 SCC 41, while in June the Ontario Court of Appeal released its decision in Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410. Both cases re-affirmed that an Anns/Cooper test is appropriate in the context of claims in negligence or negligent misrepresentation. They also served to further refine and clarify key elements in the duty of care analysis undertaken for municipal defendants.
In Nelson, the SCC upheld the B.C. Court of Appeal (BCCA) decision that the trial judge had erred in finding that the City of Nelson owed no duty of care to the plaintiff. The duty of care analysis turned on whether the City was shielded by its core policy immunity. In this instance, the city started plowing and sanding streets after a heavy snowfall pursuant to its written policies and unwritten practices. Among the tasks completed by city employees was the clearing of snow in angled parking stalls on streets. No access points had been cleared to allow drivers parking their vehicles along the street to get from the stalls to the sidewalk, except at the intersections. The plaintiff had parked in the middle and decided to cross the snowbank, seriously injuring her leg.
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