The Supreme Court of Canada in Nelson (City) v Marchi, 2021 SCC 41 recently confirmed that municipalities owe a duty of care to prevent injuries from snowbanks on roads and sidewalks. At issue in this personal injury action was whether the City of Nelson was liable to the Plaintiff after she had seriously injured her leg while stepping onto a snowbank in a downtown parking stall. The British Columbia Court of Appeal allowed the Plaintiff’s appeal and ordered a new trial after the trial judge dismissed her action.
Writing for the unanimous Court, Karakatsanis and Martin JJ concluded that core policy immunity did not apply to the City’s snow removal decisions. Building on Just v British Columbia, 1989 CanLII 16 (SCC) and R v Imperial Tobacco Canada Ltd, 2011 SCC 42, the Court set out the following four factors to determine whether a government action was a core policy decision that attracted Crown immunity or an operational decision not immunized from liability:
- the level and responsibilities of the decision-maker,
- 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.
First, the closer the decision-maker was to a democratically-accountable official, the more that factor would favour core policy immunity. Second, the more deliberative the process by which the decision was made, the more likely it would be found to be core policy decision. Third, budgetary allotments across government departments and agencies were more likely to be classified as core policy decisions than day-to-day budgetary considerations of individual employees. Fourth, the more a decision was based on value judgments and weighed competing interests, the more likely it would be found to be a core policy decision, as compared to a decision based on technical standards or objective criteria.
Turning to the case at bar, the Court concluded that the City’s snow clearing of parking stalls in a downtown block without ensuring access to sidewalks was not a core policy decision immune from liability because it involved none of the characteristics of core policy. The City supervisor had no authority to make different decisions as to the clearing of parking stalls. The method of plowing had not resulted from a deliberative process. The only budgetary considerations where those of individual employees on a day-to-day basis and not at a high level. Finally, the method of plowing could be assessed based on objective criteria and was not based on value judgments involving economic, social, or political considerations.
The Court helpfully clarified the framework for assessing the policy-operational decision distinction as it relates to the liability of government actors. By identifying four factors to consider and explaining how they are to be weighed, this decision is sure to assist in the determination of what constitutes a core policy decision, which the Court recognized as a question, is a “vexed one, upon which much judicial ink has been spilled” (per Imperial Tobacco). In addition, the Court also provided guidance on how to assess core policy immunity when conducting the full two-step Anns/Cooper test to determine whether to recognize a novel duty of care even though the Court found that the duty of care in issue fell into the established category from the decision in Just. In all cases, the above noted principles apply when the nature of the claim calls for it.
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