Winter is Coming: The Supreme Court of Canada on Government Immunity for Policy Decisions, and its Application to Snow Removal
Introduction
In the recent Supreme Court of Canada decision in Nelson (City) v. Marchi, 2021 SCC 41, the Court develops a four-factor test for determining whether a decision of a government entity is a “core policy decision” that is immune from liability in tort. This decision is of particular importance to municipalities and their insurers in the application and evaluation of the “core policy decision” immunity defence when faced with a new claim.
Background
After a heavy snowfall, the City of Nelson began plowing and sanding streets pursuant to written and unwritten snow clearing and removal policies. City employees cleared snow in angled parking stalls on streets located in the downtown core. The City employees plowed the snow to the top of the parking spaces, which created a continuous snowbank along the curb that separated the parking stalls from the sidewalk. No access route to the sidewalk was cleared for drivers that were parking in the stalls.
The Respondent, Ms. Marchi, parked in one of these stalls. She was attempting to access the sidewalk, but the snowbank the City created blocked any point of access to it. Ms. Marchi attempted to cross the snowbank to reach the sidewalk, which resulted in a serious leg injury. She sued the City for negligence.
Trial Level
At the trial level, the judge dismissed Ms. Marchi’s claim concluding that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions. The Court held that the City was following its written and unwritten policies on snow removal, and its decisions were dictated by the availability of resources.
In the alternative, the trial judge found that the City did not breach its standard of care because objectively, the snowbank did not pose an unreasonable risk of harm. In the further alternative, the Court held that the City’s alleged negligence did not cause the accident, but that Ms. Marchi was “the author of her own misfortune”.
Court of Appeal
The Court of Appeal ordered a new trial. On the issue of duty of care, The Court of Appeal found that the trial judge did not properly engage with the distinction between government policy and operation, and erred by accepting the City’s submission that all snow removal decisions were core policy decisions.
With respect to the standard of care, the Court of Appeal held that the trial judge’s analysis was improperly influenced by his view that the snow removal decisions were core policy decisions. The trial judge simply accepted the City’s submission that this was “the way it has always been done”, without engaging with evidence about other municipalities’ snow removal efforts.
With respect to causation, the Court of Appeal held that the trial judge had misunderstood how to factor Ms. Marchi’s own negligence into the liability assessment. On appeal, the Court held that the trial judge had improperly reasoned that, if Ms. Marchi could have avoided the accident, she was the sole proximate cause of her injuries, and failed to apply the “but for” test.
Supreme Court of Canada
The Supreme Court of Canada (“SCC”) upheld the Court of Appeal’s decision and dismissed the appeal.
The SCC identified three issues on appeal:
- whether the trial judge erred in concluding that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions that are immune from liability in negligence;
- whether the trial judge erred in his application of the standard of care; and
- whether the trial judge erred in his causation analysis.
This article will focus on the first issue, regarding whether snow removal decision was a core policy decision that is immune from negligence liability.
Analysis on Core Policy Decisions
Prior to determining whether core policy immunity was applicable in this case, the SCC examined the law on how to distinguish core policy decisions from government activities that attract liability in negligence.
First, the SCC traced the development of government immunity for negligence, explaining why core policy decisions are immune from liability. Second, the SCC described the principles and factors that the Court has already developed to identify core policy decisions.
Third, the Court provided additional guidance on these issues by clarifying the framework for the analysis of whether a decision is a core policy decision that is immune from liability. Finally, the Court applied the law on core policy immunity to the facts of the case.
(a) Government Liability for Negligence and the Rationale for Core Policy Immunity
Prior to the enactment of Crown proceedings legislation in Canada in the mid-twentieth century, governments in Canada could not be held directly or vicariously liable for negligence of Crown servants.[1]
As government functions expanded, government entities were increasingly involved in activities “that would have led to tortious liability had they occurred between private citizens”.[2] As a result, Parliament and the provincial legislature enacted legislation allowing the Crown to be held liable for the torts of officials in a manner that is akin to provide citizens.[3] In Ontario, the relevant statue is the Crown Liability and Proceedings Act, which states: “the Crown is subject to all liabilities in tort to which it would be liable if it were a person…”[4]
However, applying private law negligence to public authorities created “special problems”.[5] Legislation makes the Crown susceptible to liability as though it were a person, but the issue is that “the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions”.[6]
The Supreme Court of Canada noted that government decision-making occurs across a wide spectrum. At one end of the spectrum are policy decisions that only governments make, such as to adopt a course of action based on society-wide health policy or social and economical considerations. For these policy decisions, Courts are reluctant to impose a common law duty of care.
On the other end of the spectrum are government employees that drive vehicles, or public authorities who occupy buildings, who owe private law duties of care and must therefore act without negligence in the discharge of those duties.[7] The SCC noted that “[t]ort law must ensure that liability is imposed in this latter category of cases without extending too far into the sphere of public policy decisions”.[8]
To relieve the tension of applying private law negligence principles to public authorities, the Court has adopted the principle from Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), “that certain policy decisions should be shielded from liability for negligence, as long as they are not irrational or made in bad faith”.[9] The rationale for shielding core policy decisions from liability for negligence is to maintain the separation of powers of the government. Subjecting policy decisions to private law duties of care would intertwine the courts in evaluating decisions that are best left to the legislature or executive.[10]
Importantly, the SCC notes that core policy decisions of the legislative and executive branch involve consideration of competing economic, social and political factors and a contextualized analysis of information. These decisions should not be based only on objective considerations, but require value judgments.
If courts were to weigh in on these decisions, “they would be second-guessing the decision of democratically elected government officials and simply substituting their own opinions”.[11] Ultimately, the rationale for core policy immunity is to protect the legislative and executive branch’s core institutional roles and competencies, which is necessary for the separation of powers.[12]
(b) Defining the Scope of Core Policy Decisions
The question of what constitutes a “true” or core policy decision is not straightforward, but jurisprudence has provided helpful guidance. Core policy decisions that may be shielded from liability in negligence are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith”.[13] They are a “narrow subset of discretionary decisions” because discretion “can imbue even routine tasks,” and protecting all discretionary government decisions would cast “the net of immunity too broadly”.[14]
Following an in-depth review of the jurisprudence, the Supreme Court of Canada outlined four factors to be used to identify core policy decisions:
- 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.[15] The higher the level of the decision maker within the executive hierarchy, the higher the possibility that judicial review of their decisions will raise a separation of powers concern.
- The process by which the decision was made: the more the process for reaching the decision was deliberative, required debate, involved input from different levels of authority, and was intended to have broad application, the more likely it is a core policy decision.[16]
- The nature and extent of budgetary considerations: government decisions “concerning budgetary allotments for departments or government agencies will likely be classified as policy decisions”.[17] Day-to-day budgetary decisions of individual employees will likely raise separation of power concerns.[18]
- The extent to which the decision was based on objective criteria: the more a government decision weighs competing interests and requires value judgments, the more likely separation of powers will be engaged because the court would be substituting its own value judgment.[19] Alternatively, the more a decision is based on “technical standards or general standards of reasonableness”, the more likely it can be reviewed by the court for negligence.[20]
The SCC also provided two points of clarification with respect to the application of the test. The first is that financial implications alone will not automatically classify a decision as a core policy decision. The second is that the nature of the decision must be carefully considered on a case-by-case basis to determine whether a decision is a true core policy.
The fact that the word “policy” is found in a written document or that the plan is labelled as a “policy” is not determinative of the question. The focus “must remain on the nature of the decision itself, rather than the format or the government’s label for the decision”.[21]
(c) Application of Core Policy Immunity
The Supreme Court of Canada reiterated the legal principle from 1688782 Ontario Inc. v. Maple Leaf foods Inc., 2020 SCC 35, that whether the defendant owed the plaintiff a duty of care is a question of law, not of mixed fact and law as proposed by the City.[22] The Court noted that while the underlying facts found by the trial judge deserves deference, whether those facts meet the legal test of core policy immunity is a question of law that must be correct.[23]
The SCC held that the trial judge erred in his legal analysis of whether core policy immunity applied.[24] Applying the four principles outlined above, the SCC found that the City’s clearing of snow from the parking stalls by creating snowbanks along the sidewalks, and thereby inviting members of the public to park in those stalls without ensuring a clear pathway to the sidewalks was not the result of a core policy decision that is immune from liability in negligence.[25]
The City reacted to the snowfall in the usual course: it followed priority routes for plowing in the written policy; it waited to remove snowbanks from the downtown core until after all city streets were plowed; it followed several unwritten practices, including with respect to removal of snow from stairs around the City.[26]
Clearing parking stalls was not part of the written policy, but the City cleared the angled parking stalls, and created a continuous snowbank blocking the stalls from the sidewalk.[27] Throughout this process, the public works supervisor made decisions about how many employees to deploy. She also completed road patrol throughout the day to ensure that the streets were safe, and that the crew was working in a timely manner.[28]
The trial judge determined that “it did not occur” to the supervisor that this process could be done differently.[29] When the supervisor was asked whether she had ever considered the potential dangers caused by clearing the parking stalls, she responded that her job was to follow “[the] normal protocol” and “follow direction from above”.[30]
The City’s decision in this regard did not bear the hallmarks of a core policy decision. The extent to which the supervisor was closely related to a democratically elected official was unclear from the record.[31] The supervisor did disclose that she did not have the authority to make a different decision with respect to clearing snow from the parking stalls (first factor).[32] There was no evidence that suggested an assessment was ever made as to the feasibility of clearing pathways in the snowbanks.[33] The City’s evidence was that it was a matter of custom (second factor).
It was clear that budgetary considerations were involved in this decision, but these were not high-level considerations but rather were day-to-day considerations of individual employees (third factor).[34] Finally, the City’s chosen method of plowing parking stalls could be assessed based on objective criteria (fourth factor).
Cases such as this will not generally raise institutional competency concerns, because courts routinely consider road and sidewalk maintenance in occupier’s liability cases.[35] The Court is well equipped to determine whether the snowbanks posed an objectively unreasonable risk of harm. The safety of a road or sidewalk can be measured on objective criteria or standards, as it is in the private sector.[36]
After consideration and analysis of the application of the four-factor test, the SCC found that the City had not demonstrated that the manner in which it plowed the parking stalls was the result of a proactive, deliberative decision, based on value judgements related to economic, social or political considerations. Accordingly, the City did not meet its burden of proof to establish that Ms. Marchi sought to challenge a core policy decision that was immune from liability in negligence.
Take Away
The Marchi decision articulates the factors that a court will consider when assessing whether a core policy decision is immune from liability in negligence.
It is not enough for a government entity to merely identify a decision as a “core policy” decision. The nature of the decision must be carefully considered on a case-by-case basis to determine if the decision will qualify as a true core policy decision, and therefore attract immunity in tort.
This case is particularly important for municipal and other government defendants and their lawyers when assessing the availability of tort immunity in a given case, and the evidence required to address the four-factor test for the application of that immunity set out by the Supreme Court of Canada.
[1] Nelson (City) v. Marchi, 2021 SCC 41 at para 38.
[2] Ibid.
[3] Ibid.
[4] Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, Section 8(1).
[5] Nelson (City) v. Marchi, 2021 SCC 41 at para 39
[6] Just v. British Columbia, [1989] 2 S.C.R. 1228.
[7] Supra note 1 at para 39.
[8] Ibid.
[9] Ibid at para 41.
[10] Ibid at para 42.
[11] Ibid at para 44.
[12] Ibid.
[13] Ibid at para 51 citing Imperial Tobacco at para 90.
[14] Ibid.
[15] Supra note 1 at para 62.
[16] Ibid at para 63.
[17] Ibid at para 64.
[18] Ibid.
[19] Ibid at para 65.
[20] Ibid.
[21] Ibid at para 59.
[22] Ibid at para 71.
[23] Ibid.
[24] Ibid at para 80.
[25] Ibid.
[26] Ibid at para 81.
[27] Ibid.
[28] Ibid.
[29] Ibid at para 82.
[30] Ibid.
[31] Ibid at para 83.
[32] Ibid.
[33] Ibid.
[34] Ibid.
[35] Ibid at para 84.
[36] Ibid.