Canadian Lawyer

November 2022

The most widely read magazine for Canadian lawyers

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38 An SCC decision provides criteria for determining if a practice is 'core policy' or 'operational,' but challenges remain, lawyers say Getting a grip on slip-and-fall cases A BC slip-and-fall case sent back to the trial court by the Supreme Court of Canada last year was recently settled without a retrial. But even without readjudication, lawyers say it has created more clarity around liability considerations for core policy deci- sions by a government body. Murphy Battista LLP's Joe Murphy, one of the lawyers for the plaintiff in Nelson (City) v. Marchi, says, "The SCC has really narrowed the circumstances under which a policy decision is going to be successful as a defence to a negligence claim." He adds that the decision also sets out clear criteria for determining what a policy decision is and what is "operational." It also confirms that "just because something is labelled a policy decision by a municipality or other government body, that doesn't mean it automatically protects them from liability." Warren WhiteKnight, a partner at the Ontario firm Bergeron Clifford LLP, says the Marchi case "is really helpful" for both plaintiff and defence lawyers. "It tells you that if you are dealing with a municipal defendant or other government body, you have to see if their rules and regulations are written clearly and if the government "There are pros and cons for lawyers for the plaintiff and the public authority," Jardine says. "The question is whether it will prolong the litigation process or streamline it. We don't know yet." The lawsuit against the City of Nelson that led to the SCC decision started when Taryn Marchi, then 28, sued the city for negligence after she injured her knee following a heavy snowfall in 2015. At the Supreme Court of British Columbia trial, Marchi lost her case, with the judge body had proper deliberations and made decisions to create a core policy that would allow for immunity." However, Lyndsay Jardine of Wagners in Halifax says the decision does set out a clear plan for determining whether a practice is a policy decision or an operational matter. Lawyers acting in such negligence cases will likely have to do "a lot of heavy lifting" in the disclosure and discovery process to deter- mine what is or is not a core policy. LEGAL REPORT LITIGATION "The SCC has really narrowed the circumstances under which a policy decision is going to be successful as a defence to a negligence claim" Joe Murphy, Murphy Battista LLP saying she was "the author of her own misfor- tune" by attempting to walk over the snow- bank in sneakers. She appealed the decision to the BC Court of Appeal, which decided in her favour in January 2020. Then the city,

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