Jon Woodward
CTV News Toronto Videojournalist
Published Monday, October 25, 2021
TORONTO — Advocates for people with disabilities say they are hoping a Supreme Court of Canada ruling that makes cities more accountable for accidents related to snow clearing will lead to more accessible streets across the country.
Observers say the decision could extend to legal liability for other municipal activities from filling potholes to swimming pools to garbage collection, which may bring improved service but also higher costs.
The case – based on a woman injuring herself while clambering over a snowbank that had been left on a sidewalk by city workers in Nelson, B.C. – could have implications for cities across Canada, said lawyer David Lepofsky.
“I hope it’s going to make municipalities sit up and take a listen, and make sure they get it right,” said Lepofsky, a lawyer who is legally blind and represents the Accessibility for Ontarians with Disabilities Act (AODA) Alliance.
He said he knows people with disabilities who have navigated into the roadways to avoid snowbanks left by city crews.
“They can create very serious barriers for people with disabilities,” he said.
The far-reaching decision stems from the snow piles that the city of Nelson, B.C. created when a worker cleared snow from downtown streets after a storm in early January 2015.
Nurse Taryn Joy Marchi, 28 at the time, parked in an angled spot on the street and tried to cross the snow pile to get to the sidewalk. She claimed her right foot dropped through the snow and her leg was seriously injured.
She said the city should have left openings in the sidewalk to allow safe passage, as other cities in the area did. But the trial judge dismissed the case, saying that cities were immune from lawsuits relating to policy decisions.
However, on appeal first to the B.C. Court of Appeal and then to the Supreme Court, judges found that clearing the snow was not a “core policy decision” and so the regular principles of negligence apply.
“I think it’s going to help improve snow clearing – if we can do it correctly-so we don’t leave snowbanks in the way or potential hazards for members of the disability community,” said Anthony Frisina of the Ontario Disability Coalition.
Those hazards have been an issue for Toronto resident Alison Brown, who is legally blind and navigates the city with the help of Ellis the vision dog. She says sometimes the city doesn’t make it easy for her.
“We’ve experienced many situations where the snow is blocking the sidewalk. It becomes a stress factor and makes our ability to maneuver challenging,” she said.
She said she’s not sure what the court decision means to her — but hopes that cities get the message to “clear the snow.”
The Supreme Court decision can apply to other things a city does, or doesn’t do, said personal injury lawyer Melissa Miller with Howie, Sacks & Henry LLP.
“This case is more far-reaching than simply snow removal, which is what’s so significant about it,” she said.
“A pothole that isn’t filled in downtown Toronto that bottoms out your car and causes you a significant injury is potentially now the subject of a lawsuit,” she said.
Toronto City Councillor Kristyn Wong-Tam said the ruling is a sign that cities must take the responsibilities of clearing snow seriously for all people.
“We have now heard a statement that says everybody get your house in order,” she said. “You have a responsibility to make sure roads and sidewalks are safe.”
Wong-Tam seconded a motion at Toronto city council in May that asked the General Manager of Transportation Services to report on the feasibility of clearing snow from accessible parking spaces by July. That date was pushed to September – but she said the report still had yet to happen.
“This is a very wealthy city. Things should not be falling apart as long as we maintain it,” she said.
Lepofsky said the case may lead to more scrutiny for snow-clearing city employees, and snow-clearing robots, which are being tested right now in Ontario.
“No matter how clever a robot is, and I don’t think it’s that clever, the danger is that they will also shovel snow into the path of a person with disabilities,” he said.
In that case, it may be less obvious who to sue if there is not a clear connection between the robot’s actions and the person who programmed it or is monitoring it, he said.
The City of Toronto, which intervened in the lawsuit, said through a spokesperson that it will “continue to deliver a comprehensive snow and ice clearing service this winter, with council approval, has the capability to adjust service levels if required.”