Snowbanks and poor visibility: Do municipalities risk liability for accumulated snow?

The winter months in Atlantic Canada bring with them the accumulation of snow and ice on city streets and sidewalks, as well as snow melt due to freeze/thaw cycles. In addition, snow plowing often results in the accumulation of snowbanks along both sides of streets. These hazardous conditions can have huge impacts on pedestrian and motorist safety, as well as liability implications for cities and municipalities.

Are municipalities liable for an accident caused by poor visibility because of snowbanks?

Although there is oftentimes no policy in place that requires municipalities to clear entrances to crosswalks or to remove snowbanks, municipalities are not absolved of liability. According to section 513(1)(b) of the Nova Scotia Municipal Government Act, a municipality is responsible for keeping public places subject to its direction, control, and management in a state of reasonable repair if the municipality has actual or constructive knowledge of the state of disrepair and fails to take steps to remedy or otherwise deal with the state of disrepair within a reasonable time.

The standard changes slightly in PEI, where liability for injury from snow arises when the municipality was grossly negligent, according to Prince Edward Island’s Municipal Government Act. It is important to understand the individual regulations in your province prior to bringing legal action.

Legislation and the responsibilities of municipalities vary from province to province. If you have been injured due to low visibility by a motor vehicle, we advise that you speak to a personal injury lawyer to discuss your claim. MacGillivray Law has lawyers who would be able to help guide you through your claim and get you the compensation you deserve.

Is the city negligent if they don’t do snow removal?

A forecast for wintery weather and snow is likely sufficient to impose actual or constructive knowledge on a city for the need for special winter maintenance treatment. However, a finding of negligence on the part of a municipality will involve weighing the underlying facts, making factual conclusions, and drawing inferences as to whether the municipality failed to exercise the legal standard of reasonable care. A standard of perfection is unreasonable, and members of the public should not expect that highways, streets, or sidewalks will be completely free of snow and ice at all times during the winter months. A municipality has a reasonable time to clear snow and ice away.

An issue arises with respect to the “core policy defense” that cities often invoke to shelter from liability. In the Supreme Court case Nelson (city) v Marchi, 2021 SCC 41, city employees cleared snow in angled parking stalls and plowed the snow on the top, which created a continuous snowbank along the curb that separated the parking stalls and sidewalk. A pedestrian was attempting to access the sidewalk and attempted to cross the snowbank to reach it, seriously injuring her leg. The Supreme Court affirmed the Court of Appeal, which found that the city’s snow removal decisions were not “core policy” decisions and did not insulate the city from liability.

The Appellate Court held that even if the pedestrian’s own negligence was partly to blame, the lower court should have applied the “but for” test to determine liability on the city’s part. The “but for” test is a test used in tort law to determine causation. It asks, “but for the existence of this variable, would this outcome have occurred?” In the above case, the Supreme Court clarified that a “core policy” decision is a proactive, deliberative decision based on value judgment related to economic, social, or political considerations.

Municipal liability with respect to winter maintenance and snow removal raises several intertwined issues. Experienced legal advice is key to navigating your claim and holding those at fault accountable.