Granted (1)

Torts/Municipal Law: Snow Removal 

Nelson (City of) v. Marchi2020 BCCA 1 (39108)
There was a heavy snowfall in Nelson, B.C. overnight on January 4‑5, 2015. The City work crews plowed the main commercial street early in the morning of January 5. They did so in a manner that created snowbanks or “windrows” along the curb and onto the sidewalk. The Respondent, Ms. Marchi parked her car in an angled parking spot on the north side of main commercial street. When Ms. Marchi left her car, she encountered the snowbank that had been left by the City’s work crews a day and a half previously. Seeing no other means of getting onto the sidewalk, she tried to cross the snowbank. As she did so, her right foot dropped through the snowbank, and she suffered serious injury to her leg. Ms. Marchi sued the City, alleging it had been negligent in leaving windrows along the road, leaving no space for pedestrians to cross from their car onto the sidewalk. The trial judge dismissed Ms. Marchi’s action in negligence on the grounds the City’s decisions regarding plowing activities were bona fide policy decisions, governed by factors including budgetary social and economic factors, including the availability of manpower and equipment. As such, the trial judge concluded the City’s decisions were immune from liability. The trial judge also concluded, in any event, Ms. Marchi understood and accepted the risk of walking into the snowbank, with inappropriate footwear, and failed to test the snow to determine whether it could bear her weight. The C.A. allowed the appeal, on the grounds the trial judge had made significant errors of fact and law, which had coloured his finding the City’s snow clearing activities were immune from liability. The court allowed the appeal, set aside the order dismissing the Ms. Marchi’s action, and ordered a new trial. “The application for leave to appeal…is granted.”

Dismissed (2)

Criminal Law: Jury Instructions 

Abdulle v. R., 2020 ONCA 106 (39175)
Mr. Maclean was beaten and stabbed to death. Four people were charged with second degree murder. They were tried jointly before a jury. Two accused, Mr. Bryan and Ms. Abdulle, testified. Mr. Bryan’s testimony, if believed, exonerated him and did not implicate anyone. Ms. Abdulle’s testimony, if believed, exonerated her and implicated Mr. Bryan. The trial judge did not allow Ms. Abdulle when she was being examined‑in‑chief by her counsel to describe utterances allegedly made to her after the attack by one of the co‑accused who did not testify. The trial judge, in his charge to the jury, cautioned the jurors to consider Ms. Abdulle’s testimony implicating her co‑accused with particular care and caution because she may have been more concerned with protecting herself than with telling the truth. He did not give a similar instruction in respect of Mr. Bryan’s testimony. A jury acquitted Mr. Bryan and convicted Ms. Abdulle and the two other co‑accused of second-degree murder. The C.A. dismissed an appeal from the convictions. “The application for leave to appeal…is dismissed.”

Insurance in Québec: Claim Denial 

Anderson v. Intact Insurance Company2020 QCCA 318 (39156)
Following a fire that destroyed a building in Québec owned by Mr. Anderson, he claimed an insurance indemnity from Intact. He also claimed damages alleging it had acted wrongfully in processing his claim. Intact denied coverage and asked Mr. Anderson reimburse it the $313,180 it had paid to his hypothecary creditor.  The Québec Superior Court found Mr. Anderson had breached his duty to cooperate with the insurer and dismissed his application. Intact’s cross application for reimbursement of the amount paid to the hypothecary creditor was allowed. The Court of Appeal dismissed the appeal, finding the evidence supported the trial judge’s conclusions. It also dismissed Intact’s incidental appeal seeking to have the contract declared null ab initio. “The application for leave to appeal…is dismissed with costs.”