Court Clarifies Test for Core Policy Immunity of Municipalities
The concept of government liability in negligence for policy vs. operational decisions has existed for some time. Core policy decisions are exempt from liability, whereas operational decisions are subject to the usual common law liability considerations. The line between policy and operational decisions can be blurry, leading to inconsistent case law.
In City of Nelson v Marchi, 2021 SCC 41, the Supreme Court considered this unclear concept of core policy vs. operational decision immunity in the context of municipal liability for a slip and fall claim and provided additional clarity on where to draw the line.
Case Facts + History
The facts of the case were straightforward. Based on its written snow removal documents and unwritten practices, the City started to plow and sand streets after a heavy snowfall. One of the tasks completed by City employees was clearing snow in angled parking stalls on roads in the downtown core. The 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. The employees did not clear an access route to the sidewalk for drivers parking in the stalls. The plaintiff parked in one of the angled parking stalls, but the snowbank blocked her path to the sidewalk. As she tried to cross the snowbank, she seriously injured her leg and sued the City for negligence.
The Trial Judge dismissed the claim, concluding the City did not owe the plaintiff a duty of care because its snow removal decisions were core policy decisions. The trial judge also found that there was no breach of the standard of care and that even if there was a breach, the plaintiff was the cause of her own injuries. The Court of Appeal concluded that the Trial Judge erred on all three conclusions and ordered a new trial.
Supreme Court Clarifies Policy/Operational Distinction
The Supreme Court reviewed the law in Canada regarding when a duty of care is owed. Based on prior Supreme Court decisions, the Court noted that a prima facie duty of care was owed by the City to the plaintiff. The analysis then shifted to the crux of the Court’s decision – whether the City’s decisions regarding snow removal policy were “core policy” decisions that would negate this duty of care.
In Marchi, the onus was on the City to establish that it was immune from liability because a core policy decision was at issue. The Supreme Court clarified that true policy decisions must be distinguished from operational implementation (which is subject to private law principles of negligence). The Court identified four factors to assess whether a government’s decision is core policy and thus exempt from liability, or operational, which is not exempt from liability (although a plaintiff must still prove all elements of negligence to establish liability, subject to additional statutory liability exemptions):
- The level and responsibilities of the decision-marker;
- The process by which the decision was made;
- The nature and extent of budgetary considerations; and
- The extent to which the decision was based on objective criteria.
The Court also noted that precisely describing the government decision or conduct at issue is key to the analysis. In this case, the decision at issue was not the City’s snow clearing policies generally. It was the City’s snow plowing in the angled parking stalls downtown, creating snowbanks along the sidewalks.
The Supreme Court held that the City employees’ actions were not the result of a core policy decision that would exempt the City from liability in negligence. Specifically, the City had not shown that the way it plowed the parking stalls was the result of a proactive, deliberative decision based on value judgments to do with economic, social or political considerations. Rather, it was a routine part of the City’s snow removal process to which little thought was given.
As a result, the Supreme Court agreed with the BC Court of Appeal and directed a new trial. Since the trial judge had exempted the City from liability on the basis that no duty of care was owed, a new trial was needed to properly assess potential negligence based on this duty of care. The Supreme Court also agreed with the BC Court of Appeal that the trial judge had erred in the standard of care and causation analyses, further necessitating a new trial.
The Supreme Court did not state that the City was negligent. It made no comments on whether the conduct at issue breached the requisite standard of care. Instead, the Court noted that the trial judge’s conclusions on why the City was exempt from liability were incorrect, thus requiring a new trial.
Marchi provides needed clarity regarding when government decisions will be core policy vs. operational. As the Supreme Court noted, prior case law from across the country had struggled to articulate the distinction. Municipal liability generally is unchanged by this decision, other than to the extent a municipality sought a full liability exemption based on the policy/operational distinction. A municipality’s core policy decisions are still exempt from liability, although the criteria to establish a core policy decision are now more stringent.
The Alberta Advantage?
Had Marchi been decided in Alberta, the decision might have been different. In Alberta, a municipality will only be liable for an injury to a person or damage to property caused by snow, ice, or slush on roads or sidewalks if the municipality is grossly negligent, pursuant to section 531(1) of the Municipal Government Act. In addition, under section 530 of the Municipal Government Act, Alberta municipalities are exempt from liability if a plaintiff’s losses result from systems of inspection or maintenance, even if they were negligent.
If municipalities have questions regarding strategies to protect themselves from liability, please contact Anthony Burden, Amanda Baker, or any member of our Insurance Practice Group.