Fridays with Rogers Partners

October 22, 2021

At our weekly meeting, Annie Levanaj discussed the recent decision of the Supreme Court of Canada in Nelson (City) v Marchi, 2021 SCC 41, which dealt with the question of when public authorities can be held liable in negligence.

Facts

This case arose from an incident that took place in the City of Nelson, British Columbia. The respondent, Taryn Joy Marchi, was injured while attempting to cross a snowbank created by the appellant, the City of Nelson. There was heavy snowfall in January 2015 in the City of Nelson which required City employees to clear the snow in angled parking stalls of the downtown core. Employees plowed the snow to the top of the parking spaces, creating a snowbank along a curb that separated parking stalls from the sidewalk.

The City did not clear an access route to the sidewalk for drivers parked in the stalls. Ms. Marchi parked on Baker Street in the downtown core, and decided to walk over the snowbank to get to the sidewalk. She fell and severely injured her leg while doing so, and sued the City in negligence. 

The City’s position was that it should not have to pay damages because snow clearing decisions constituted “core policy decisions,” and as such the City is immune from liability resulting from those decisions. The City relied on its written policy, “Streets and Sidewalks Snow Clearing and Removal,” and unwritten practices.

History

Supreme Court of British Columbia

The trial judge dismissed the respondent’s claim and stated that the City did not owe Ms. Marchi a duty of care, because snow removal decisions were core policy decisions. Justice McEwan also found that there was no breach of the standard of care, and that if there was a breach, Ms. Marchi was the proximate cause of her own injuries. 

Court of Appeal for British Columbia

The Court of Appeal found that the trial judge erred on all conclusions, and ordered a new trial. It held that the trial judge did not properly engage with the distinction between government policy and operational decisions. The City of Nelson appealed to the Supreme Court of Canada (SCC).

Issues

The three issues before the SCC were:

  1. Whether the trial judge erred in concluding that the City did not owe a duty of care because snow removal decisions were core policy decisions immune from negligence liability;
  2. Whether the trial judge erred in his standard of care analysis; and
  3. Whether the trial judge erred in his causation analysis

Supreme Court of Canada Analysis

Duty of Care

The court cited Just v British Columbia[1], an analogous decision that demonstrated that the government could owe a private law duty of care. Specifically, that case found that public authorities owed a duty of care to road users to keep the roads reasonably safe, but noted the duty was subject to a public authority’s immunity for true policy decisions. In Just, the court found that the impugned system of inspection was operational in nature, and could be reviewed by a court on standard of care.

The SCC stated that where a public authority has undertaken to maintain a public road or sidewalk to which the public is invited, and the plaintiff suffered a personal injury as a result of the public authority’s failure to maintain the road, the Just category of duty of care applied.

The Supreme Court found that Ms. Marchi had established that her circumstances fell within the scope of the Just category. However, the SCC recognized that the decision in Just did not outline when an impugned government decision with respect to road maintenance would be a core policy decision.

The Court further noted that core policy analysis in one case does not necessarily apply to other cases. In all cases, however, the onus to raise and establish immunity from liability due to a core policy decision rests on the public authority.

Core Policy Decisions

The SCC began its analysis of policy decision immunity by recognizing that certain policy decisions should be shielded from liability for negligence, provided that they were not irrational or made in bad faith. The court explained that this approach preserves the separation of powers between the executive, legislative and judicial branches of government, by not allowing courts to weigh in on the decisions of the democratically-elected government officials.

However, the SCC noted the importance of holding public authorities liable for negligence in certain situations:

“municipalities function in many ways as private individuals or corporations do and have the ability to spread losses… liability for operation activities is ‘a useful protection to the citizen whose ever-increasing reliance on public officials seems to be a feature of our age’”[2]

Core policy decisions were defined by the SCC as those weighing competing economic, social, and political factors, and conducting contextualized analyses of information.

The SCC distinguished between immune policy decisions, and operational government activities that do attract liability for negligence. It stated the main focus of the analysis should be on the nature of the decision. The SCC explained that policy decisions generally “will be made by legislators or officers whose official responsibility requires them to assess and balance public policy considerations”[3].

Government activities attracting liability in negligence, however, are generally left to the discretion of individual employees or groups, do not have sustained periods of deliberation, and reflect the exercise of an agent or group of agents’ judgements.

The SCC identified four factors for assessing the nature of a government decision:

  1. The level and responsibilities of the decision-maker;
  2. The process by which the decision was made;
  3. The nature and extent of budgetary considerations; and
  4. The extent to which the decision was based on objective criteria.

The SCC clarified that just because the word “policy” is found in a written document, does not necessarily mean the decision is a policy one. In addition, the mere presence of budgetary, financial or resource implications also does not mean it is a policy decision.

Decision

The SCC held that the trial judge had placed too much weight on the “policy” label in the City’s written practices, and that the trial judge had erred in focusing broadly on the entire process of snow removal. The Court unanimously found that the City’s decision was not a core policy decision that was immune from liability, but was operational, and therefore that the City of Nelson owed Ms. Marchi a duty of care.

Regarding the standard of care and causation, the SCC held that the trial judge’s analysis was tainted by legal errors. The SCC dismissed the appeal, and ordered a new trial as key factual findings were required which it was not well placed to determine.

Takeaways

The Court’s focus when determining whether a government decision is a true policy decision should be on examining the nature of the decision. The test put forward by the SCC will be instrumental for assessing negligence cases in relation to government authorities going forward.

This decision is important in that it demonstrates that public authorities can be held liable for negligence even when they are performing what they believe are “core policy” decisions. The onus is on them to present evidence that the decision is a true policy decision. Whether this decision will open the flood gates in personal injury cases is to be determined.

[1] (1989) 2 SCR 1228.

[2] At para 48.

[3] At para 54.