Winter cycling is upon us. Images of ice and snow blocked bike lanes no doubt convince many that riding a bike all year is not a safe choice. However, that shouldn’t be the case.
Since 2020 we have seen a cycling revolution! Throngs of people choosing bikes for transportation, fun, work, and exercise. No doubt that increase will translate into more cyclists on the roads year-round. (And not a moment too soon as the Climate Emergency requires all of us to take action.)
Municipalities across Ontario need to take steps to make cycling safer, not just during fair weather cycling months but year-round. A recent Supreme Court of Canada ruling on municipal duties as it relates to snow clearing may provide the legal incentive needed to get our town and city councils to be pro-active.
The Supreme Court in Nelson (City) v. Marchi, may have handed cyclists a platform to demand bike lanes be clear of snow and safe to ride during the winter.
After a heavy snowfall, Nelson City employees cleared snow from angled city street parking stalls and the adjacent sidewalk. This created a snowbank between the two but no path from street parking to the businesses they were meant to serve. Ms. Marchi exited her car and was forced to climb over a snowbank to get to the sidewalk. She fell and seriously injured herself.
Ms. Marchi sued the city for negligence. The trial judge dismissed her claim concluding that the city did not owe her a duty of care because its snow removal decisions were 'core policy decisions'. A municipality can escape liability if the relevant government decision is protected by core policy immunity.
Core policy decisions are decisions based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith.
The City of Nelson, B.C. claimed that its decisions about snowplowing -- which resulted in snowbanks being created along the city curbs, separating parking stalls from sidewalks -- were policy decisions rather than simply operational ones.
The British Columbia Court of Appeal and then the Supreme Court disagreed that clearing a path from the parking spots to the sidewalks in this case was a core policy decision.
The mere presence of budgetary, financial, or resource implications does not determine whether a decision is core policy. Just because the word “policy” is found in a document is not determinative.
The Supreme Court held that the decision to clear snow in this manner (leaving banks between parking and the sidewalk) was an operational decision. As such, the snow removal procedure was subject to the court’s review.
The Supreme Court stated:
Insulating these kinds of decisions from negligence liability does not undermine the ability of governments to make important public interest policy choices. The public interest is not served when ad hoc decisions that fail to balance competing interests or that fail to consider how best to mitigate harms are insulated (from review). Oversight of such decisions respects the relevant roles of each branch of government.
The Supreme Court provided municipalities criteria to consider in guiding future decisions:
(1) The level and responsibilities of the decision-maker; what is relevant is how closely related the decision-maker is to a democratically-accountable official who bears responsibility for public policy decisions.
(2) The process by which the decision was made; the more debate and input from different levels of authority there was in coming to the decision the more it points to it being a core policy decision.
(3) The nature and extent of budgetary considerations; budgetary allotments versus the day to day spending decisions of individual employees.
(4) The extent to which the decision was based on objective criteria; Competing interests and value judgments versus technical standards or general standards of reasonableness.
None of the factors is necessarily determinative alone and was not enough to save Nelson City from liability.
Cyclists in municipalities across Ontario need to ask their local governments to be proactive in bike lane snow removal.
Make the case that if plowed, people will ride their bikes. If bike lanes are not plowed, then those that do ride will be put at serious risk.
Creating bike lanes for people to use and then not maintaining them in a safe and traversable state could have serious liability ramifications.
Municipalities who cite resource issues ought to carefully consider the impact of Marchi v. Nelson. If bike lane clearing is a day-to-day budget decision, perhaps opting to spend a few extra dollars or hours could save people from injury and our governments from expensive lawsuits.
The Biking Lawyer LLP's David Shellnutt spoke to Canadian Cycling Magazine about the Marchi case and what it means for municipalities across Ontario here:
***The City of Toronto and other municipalities intervened in Ms. Marchi’s case claiming this decision could have negative financial and resource implications for strapped snow removal budgets.
Cycling Groups with Winter Cycling/Snow Removal Resources:
Thanks to London Cycle Link for reaching out about this issue.
Bike Ottawa's LOVELY snow removal map! https://maps.bikeottawa.ca/winter/
Thanks to Cycle Toronto for the fantastic in depth breakdown on City of Toronto snow removal and its impact on cycling as well as how to report issues:
Ry Shissler of CycleTO in December 2019: "Having the same snow removal standards for bike routes and car routes isn’t acceptable; safe conditions for a 2-ton vehicle aren’t the same as those for a person on a bike. If we want people and businesses to thrive all year long, we can’t treat cycling routes the same as other areas."
Really fantastic work friends.
**images courtesy of CycleTO and hardy Toronto winter cyclists.
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