But this is orthodox in result isn’t it?

If the defendants, in breach of their statutory duty, had failed to do any snow clearing, then the correct question should be whether the statute gave individuals adversely impacted any cause of action? There being no right against persons generally to have them clear snow for you. That is a matter of statutory construction. Unless the Supreme Court of Canada has abolished the validity of legislation, I don’t believe in Saskatchewan Wheat Pool. How could it be legitimate for a subsequent court to conclude “yes, the statute on correct construction says that you acquire a right that is actionable in this case, but we’re going to ignore that because of  Saskatchewan Wheat Pool”? What can we say about Saskatchewan Wheat Pool that is polite?

But here, it wasn’t that they’d done no snow clearing. They’d done it, but in doing so had created a snow bank blocking the access of pedestrians to their vehicles. This created the obvious risk that pedestrians, instead of taking the long way about, would attempt to climb over the banks, and might slip and injure themselves. Which is what happened.

Here, the defendants by their negligent actions created a foreseeable risk of physical injury, a risk that had eventuated.

It was, surely, only because of the daft “policy/operational” rule in Canada that such a straightforward case went anywhere near the SCC.

Rob

Dear Colleagues;

I couldn’t help but respond when a “breach of statutory duty” (BSD) reference came up! To respond to Stéphane first, it would not require a revival of the BSD tort in Canada for the courts to consider the interaction of common law rules with statutes in determining a duty of care. That has been done on many occasions in Canada and elsewhere without directly requiring consideration of the separate BSD tort.

(For those who are interested, I had the gall to suggest a few years ago that the Supreme Court of Canada had made a mistake in the Saskatchewan Wheat Pool case by abolishing the BSD tort. You can read my reasons in the article linked here http://www.austlii.edu.au.ezproxy.newcastle.edu.au/cgi-bin/viewdoc/au/journals/SydLawRw/2011/3.html from p 82. But even without a BSD tort it seems sensible for a court to consider the interaction of a common law rule of liability with legislation in the same area.)

Perhaps contrary to Jason, I think the Marchi decision is a sensible one. Like it or not, the common law allows government bodies to have a duty of care to members of the public, and since it does there need to be some rules allowing courts to distinguish between “policy” and “operational” decisions. The guidelines set out here seem reasonable. In fact, even if one took the view that the local council could not be sued for failing  to sweep up snow, one could argue that in this case they had actually done something positive (stack up the snow from the parking area onto the footpath) and hence created a risk which was not previously present. But either way the decision seems reasonable given we are allowing government to be sued.

Compare (in my view) the decision recently argued on appeal in Australia (and noted before on this list) of Bromberg J in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021) that the federal environment minister owed a duty of care to the children of Australia not to approve a coal mine development. There is a case where the guidelines for “policy” set out here in Marchi are, I think, more than satisfied. I am pretty sure that this decision will be overturned on appeal.

Colleagues may also have noticed the decision of the New Zealand Court of Appeal in Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552 [21 October 2021]. The case is not on the same grounds as the Sharma case in Australia- it involved a claim against 7 private companies who contributed to global climate change, not against the government. But the sort of "policy" matters discussed by the court are similar to those considered in the Sharma litigation and the court held that there was no duty of care in negligence, or any other tort action.

Regards

Neil

I suppose that depends on whether we want to reconsider the place of breach of statutory duty in Canadian law…