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40 www.canadianlawyermag.com were policy decisions rather than simply operational ones. The city's decision on plowing its snow roads "bore none of the hallmarks of core policy," Karakatsanis and Martin wrote, with Chief Justice Richard Wagner and Justices Michael Moldaver, Suzanne Côté, Malcolm Rowe and Nicholas Kasirer concurring. "There is no suggestion that the method of plowing the parking stalls ... resulted from a deliberative decision involving any prospective balancing of competing objec- tives and policy goals," the justices wrote. "Indeed, there was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snow- banks; the city's evidence [was] that this was a matter of custom." While budgetary constraints were a factor, the SCC ruling said, "These were not high-level budgetary considerations but rather the day-to-day budgetary consider- ations of individual employees." The justices added: "This is why our jurisprudence has so often qualified the word 'policy' to focus on 'true' or 'core' policy, pointing toward the type of policy ques- tion that requires immunity." Accordingly, "the fact that the word 'policy' is found in a written document, or that a plan is labelled as 'policy,' may be misleading and is certainly not determinative of the question." Anthony Burden, a partner at Field Law in Calgary, says that as a lawyer working with municipalities and insurance compa- nies on slip-and-fall cases, he believes "the Marchi decision makes it easier to assess policy because the court has given addi- tional clarity, though the bar is higher now." He adds that the SCC decision will make it harder "to shield everything from liability" under the guise of policy. "I wouldn't recommend that, because the goal of a municipality should always be good governance and providing services, not trying to find liability loopholes," he says. And even if it wanted to, Burden says it would be arduous to have the town or city council "debate and approve every single decision about garbage removal, snow removal and the rest." While the SCC ordered a retrial, Marchi and the city of Nelson settled the case in August. The agreement has a provision that the amount of the settlement be kept confidential. Jardine says the SCC has done an excel- lent job of setting down the criteria for determining a core policy, "but then you have to apply it, practically speaking." She notes that if a municipality is particularly aggressive in defending a negligence claim, "from the perspective of a plaintiff 's lawyer, it may take some deep and involved analysis, which could take years." She adds that a retrial might also have dived more deeply into whether a policy, even a core policy, is reasonable. For example, the plaintiff, Marchi, chose to climb over the snowbank because she felt there was no reasonable alternative for walking out of the sidewalk. Marchi's lawyer, Murphy, says she would have had to walk a distance to the nearest corner, "putting her on a relatively narrow road in slippery conditions with one-way traffic coming up behind her. So she decided that climbing over the bank was a safer option, as others had done before." Says Jardine: "What the SCC decision does do is provide some commentary on the reasonableness in these particular circum- stances. The parking stall was cleared, an obvious invitation to frequenting the busi- nesses nearby, but what were the alternatives available to her? Were they reasonable?" SLIP-AND-FALL SNAPSHOT "The Marchi decision makes it easier to assess policy because the court has given additional clarity, though the bar is higher now" Anthony Burden, Field Law LEGAL REPORT In 2018, unintentional falls represented 653,808 out of two million emergency visits, or 32% That same year, 8,800 injuries resulted from falls on ice Hip fractures were the most common injury, followed by leg fractures and head injuries 30,000 people went to Toronto emergency wards between 2006 and 2015, and 2,800 were hospitalized In the same period, 2,300 claims were filed against the city of Toronto for slips and falls on ice Sources: Canadian Institute for Health Information, City of Toronto Public Health LITIGATION