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In a recent decision, Nelson (City) v Marchi, 2021 SCC 41, the Supreme Court of Canada (“SCC”) unanimously held that municipal snow clearing and removal policies can attract liability in negligence.
The crux of this case was whether the City’s snow removal policies were immune from liability as being ‘core policy decisions’. The SCC found they were not. Providing welcome guidance on the topic, the SCC clarified what a ‘core policy decision’ is and outlined a four-factor analysis to be applied in these cases.
The facts in this case are straightforward. A woman seriously injured her leg while attempting to cross a snowbank in the downtown core of the City of Nelson. The snowbank was created by City employees who cleared snow from angled parking stalls. The snow was pushed to the top of the parking stalls and created a continuous snowbank between the stalls and the sidewalk. There was no path to cross the snowbank.
The injured woman sued the City for negligence, but the trial judge dismissed the case finding that the City did not owe her a duty of care because the snow removal decisions were core policy decisions. Without a duty of care, the negligence claim failed. The BC Court of Appeal later found that the trial judge erred in its decision and ordered a new trial. The SCC upheld the Court of Appeal’s decision.
The SCC Clarifies Law on ‘Core Policy’
The decisive issue before the SCC was whether the City’s relevant snow removal decisions were ‘core policy decisions’ such that the City was immune from liability.
As explained by the SCC, the law of negligence in Canada offers immunity to public bodies for certain decisions because it recognizes the unique institutional role of government. Government bodies often make decisions that balance competing interests with scarce resources, and, in turn, those decisions may harm some individuals. As such, certain government decisions should remain free from court supervision – these are ‘core policy decisions’.
The SCC defined ‘core policy decisions’ as those that “involve weighing competing economic, social, and political factors” (para 44). They are distinguished from ‘operational decisions’ which are “the practical implementation of the formulated policies” (para 52).
For greater clarity, the SCC set out a four-factor analysis to determine whether a decision is a ‘core policy decision’:
- The level and responsibilities of the decision-maker
- The closer the decision-maker is to an elected official who bears responsibility for public policy decisions, the more likely it will be a ‘core policy’ (para 62)
- The process by which the decision was made
- The more the process for reaching the decision was deliberative, required debate, had input from different levels of authority, and was intended to have broad application, the more likely it will be a ‘core policy’ (para 63)
- The nature and extent of budgetary considerations
- Budgetary allotments for government departments or agencies, as opposed to day-to-day budgetary decisions of individual employees, are more likely to be a ‘core policy’ (para 64)
- The extent to which the decision was based on objective criteria
- The more a decision weighs competing interests and requires value judgments, the more likely it will be a ‘core policy’ (para 65)
The SCC emphasized that the focus in this analysis must remain on the underlying policy rationale for providing immunity, which is to protect the institutional role of government.
The SCC’s Decision in this Case
Following the four-factor test, the SCC unanimously found that the City’s decision to clear snow from the parking stalls without creating a direct access to sidewalks was not a core policy decision:
- The connection between the City’s public works supervisor and an elected official was unclear, but the supervisor did not have the authority to make a different decision;
- There was no evidence that the decision to clear the parking stalls was the result of a deliberative decision and the evidence was that it followed the City’s regular practice;
- Although there were budgetary considerations involved, these were day-to-day budgetary decisions of individual employees; and
- The City’s method of clearing parking stalls could be assessed on objective criteria.
Since the City was unsuccessful in its core policy defence, the SCC found that the City owed a duty of care to the injured woman. The Court of Appeal’s decision was upheld and a new trial ordered.
This case is significant for municipalities, and other public bodies alike, as it provides clear guidance on the types of decisions that can be successfully defended on the basis of ‘core policy’.
It is particularly instructive for municipalities in reviewing their own roadway maintenance policies and practices. However, its application is much broader than that and it will have implications for the full range of policy decisions.
If you are a municipality, and have questions regarding this decision, please reach out to a member of our Municipal Team.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.