By Administrator // In Articles // 2021.12.07 //
Supreme Court of Canada Clears the Way to Characterizing Core Policy Decisions
Author: Corey M. Smith, Articled Student
Case: Nelson (City) v. Marchi, 2021 SCC 41
In October 2021, the Supreme Court of Canada ruled that the City of Nelson (the “City”) could be held responsible for injuries caused by its snow clearing decisions.
After a heavy snowfall in Nelson, British Columbia, between January 4th and 5th 2015, the City started plowing and sanding streets pursuant to its snow clearing and removal policies. The City’s work crews cleared snow from angled parking stalls on Baker Street, located in the City’s downtown core. In plowing the parking stalls, the work crews created a snowbank along the curb that separated the parking stalls from the sidewalk. On January 6th, Ms. Marchi, parked in one of the angled parking stalls on Baker Street and attempted to cross over the snowbank. While attempting to cross the snowbank, Ms. Marchi’s foot fell through the snow and she seriously injured her leg.
Ms. Marchi sued the City alleging that it had been negligent in leaving the snowbank along the road with no space for pedestrians to cross onto the sidewalk. At trial, the judge agreed with the City that its snow clearing decisions were “core policy” decisions. Accordingly, the judge concluded that the City did not owe Ms. Marchi a duty of care as its snow clearing decisions were immune from liability. The trial judge also found that, in the alternative, there was no breach of the standard of care, or in the further alternative, that if there was a breach, Ms. Marchi was the proximate cause of her own injuries.
Ms. Marchi appealed to the BC Court of Appeal which disagreed with trial judge on all three of its conclusions and ordered a new trial. The City then appealed that decision to the Supreme Court of Canada.
Appeal to the Supreme Court of Canada
The Supreme Court agreed with the BC Court of Appeal that the City could be held responsible for its snow clearing decisions.
Justices Karakatsanis and Martin for a unanimous court agreed with the BC Court of Appeal that the trial judge erred on all three conclusions. In terms of duty of care, the City’s decisions about its snow clearing were not core policy decisions immune from negligence liability. As such, they found that the City owed Ms. Marchi a duty of care.
The Court found that the present case fell under an already established duty of care based on Just v. British Columbia,  2 SCR 1228. The category established in Just involves cases where a public authority has undertaken to maintain a public road or sidewalk and a plaintiff alleges injury due to failure of the public authority to maintain the road or sidewalk in a reasonably safe condition.
This finding meant a duty of care would be imposed on the City unless they could show that their snow clearing decisions were protected by core policy immunity. The Court noted that while core policy decisions are exempt from claims in negligence, the operational implementation of policy may be subject to a duty of care in negligence.
They went on to discuss the rationale behind shielding core policy decisions from liability in negligence, which is to maintain the separation of powers between the judiciary and the executive. In the Court’s words, subjecting core policy decisions to private law duties of care would “entangle the courts in evaluating decisions best left to the legislature or the executive.”
The Court set out the following four factors to help identify core policy decisions:
Based on these factors, the Court found that the City had not proven its decision to clear snow was a core policy decision. The Court allowed the appeal, set aside the order dismissing Ms. Marchi’s action and ordered a new trial.
The Court’s reasons clarify the analysis of core policy versus operational decisions. The primary consideration in shielding core policy decisions from liability in negligence is to protect the separation of powers. Based on this consideration, the Court outlined a number of factors to consider in assessing whether a core policy immunity defence will apply. For immunity to apply, the decision will have to be high-level and deliberative, made by someone close to an elected government official and involve a weighing of competing interests characteristic of government officials in their decision making process.
This decision has important implications for municipalities and their insurers. Municipalities will likely wish to review their decision making processes in terms of the discretion afforded to individual employees versus the involvement of municipal officials.
Overall, the decision clears the way for parties to better determine whether a defence of core policy immunity may apply.