What the Supreme Court of Canada’s Decision in Nelson (City) v Marchi Means for Local Government Policy Development and the Policy Immunity Defence

This month the Supreme Court of Canada (SCC) released its judgment in Nelson (City) v Marchi, 2021 SCC 4. The decision provides greater clarity on how to identify and assess “core policy decisions” of local governments. This is an important decision impacting on the availability of the “policy immunity defence”, of which all local governments in Canada should take notice.

In its decision, the SCC upheld the B.C. Court of Appeal’s (BCCA) decision that the trial judge had erred in finding that the City of Nelson owed no duty of care to the plaintiff. Ms. Marchi had been injured while attempting to cross a snowbank between an angled parking stall on a downtown street and the sidewalk.

The SCC’s finding that the City owed Ms. Marchi a duty of care holds important implications for local governments and their approaches to “policy formulation” and risk management. This article discusses those implications below.

The SCC also upheld the BCCA’s decision that the trial judge had erred in finding, in the alternative, that even if the City owed a duty of care, it was not negligent because Ms. Marchi was the proximate cause of her own injuries. The SCC decided that because key factual findings would need to be proven to determine issues of causation and the standard of care owed by the City in the circumstances, a new trial would need to be held.

Facts of the Case

After a heavy snowfall in January 2015, City snow clearing crews started plowing the streets in the order of priority established by its policy. Not long after, Ms. Marchi parked her car on Baker Street, the main downtown street. City crews had already plowed the street, but in doing so, they had created a snowbank along the curb of the sidewalk which acted as a barricade between the roadway and the sidewalk. No access points had been cleared to allow drivers parking their vehicles along the street to get from the stalls to the sidewalk, except at the intersections.

As Ms. Marchi had parked in the middle of the block, she decided to clamber over the snowbank to get from her car to the sidewalk and, in doing so, seriously injured her leg. She sued the City for negligence.

The City’s Policy for Snow Removal and Its Defence

The SCC found that the relationship between the City and someone in Ms. Marchi’s position was one where Canadian courts have previously recognized that a legal “duty of care” exists, namely: a public authority who has undertaken to maintain a public road or sidewalk owes a duty of care to execute the maintenance in a non-negligent manner.

The SCC was also satisfied that even were this a novel case, the relationship between Ms. Marchi and the City was sufficiently proximate to support the existence of a duty of care; there was foreseeable physical harm to Ms. Marchi from using a public space which the public authority intended and planned for people to use, and which it controlled.

Although not accepted by the Court, the City argued that any duty of care it might owe to Ms. Marchi should be negated because its approach to snow clearing arose from “core policy decisions” that are immune from negligence claims. This defence, commonly referred to as the “policy immunity defence”, has been a part of the Canadian legal test for negligence for decades and was thoroughly discussed by former Chief Justice McLachlin in the SCC’s 2011 decision in R v Imperial Tobacco, 2011 SCC 42.

In broad terms, the policy immunity defence reflects an appreciation that elected public bodies have a role in balancing competing economic, social, political, and other factors when setting policy, and the outcomes of those decisions should not be weighed by the courts. Conversely, where governments and their staff implement policy through myriad “operational” decisions they are not immune from negligence law.

As an example, a local government can, for budgetary reasons, establish a “policy” of inspecting its storm sewer grates at least once every three years. The frequency of the inspections, as set by policy, are immune from judicial scrutiny. However, the way the inspections are carried out (e.g., whether from a truck window or on the ground) and what training the inspectors receive are examples of the “operational” implementation of the policy decision that are open to court evaluation as to whether the “operational” requirements met the legal “standard of care”.

In this case, the City had relied since 2000 on a written document called “Streets and Sidewalks Snow Clearing and Removal” (the “Policy”). Broadly, the Policy stated that snow removal, sanding, and plowing would be carried out “on a priority schedule to best serve the public and accommodate emergency equipment within budget guidelines”. The Policy set out the following priorities: emergency routes and the downtown core; transit routes; plowing hills; cross streets; and dead-end streets. Ms. Marchi was injured in the 300 block of Baker Street, which is in the “downtown core”. The Policy also provided specific guidelines that snow plowing will occur during the early morning hours and that snow removal may be carried out as warranted by build-up levels. The Policy did not address how parking stalls would be cleared or provide for the creation of snowbanks.

In addition to the written Policy, the City also had several unwritten practices. For example, it plowed, sanded, and removed snow from the designated sidewalk route and the various stairs located in the City. It focused on Baker Street in the downtown core for snow removal, but to ensure safety, City workers began to remove snow from other areas, including the civic centre and around schools, when the downtown core started to get busy (typically around 11:00 a.m.). Crews then returned to Baker Street as soon as possible.

City staff followed the Policy during the snowfall in January 2015. The number of staff deployed was a decision of the City’s public works supervisor, who chose not to use more than 20 percent of the year’s snow removal budget on clearing, as it was only the City’s first major snowfall of the year.

The City argued that it could not be found to owe a duty of care to Ms. Marchi as it had made a policy decision about where, when, and how to clear snowfall based on its limited staff and financial resources and in light of competing priority snowfall areas arising throughout the community.

The Court’s View of the City’s Policy Immunity Defence

The SCC did not accept the City’s arguments and found that the City’s specific decision to clear snow from the parking stalls in the 300 block of Baker Street — thereby inviting members of the public to park in those stalls — without ensuring direct access to sidewalks was not the result of a core policy decision. Instead, this was an “operational” aspect of the City’s snow removal process “to which little thought was given”.

The SCC summarized the law regarding the policy immunity defence as follows:

  • Core policy decisions 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”. They are a “narrow subset of discretionary decisions” — meaning, the presence of choice is not a marker of core policy.
  • Core policy decisions are immune from negligence liability because the legislative and executive branches have core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight. A court must consider the extent to which a government decision was based on public policy considerations and the extent to which the considerations impact the rationale for core policy immunity.

Importantly, and at the core of the SCC’s decision, clarity is provided with respect to four factors to be assessed by courts in determining whether a “core policy decision” exists, as follows:

  1. The level and responsibilities of the decision-maker: Persons of a high level of authority, and whose responsibilities include assessing and balancing public policy considerations, are more likely to make core policy decisions.
  2. The process by which the decision was made: Core policy decisions will usually have a sustained period of planning and deliberation with input from different levels of authority.
  3. The nature and extent of budgetary considerations: The mere presence of budgetary, financial, or resource implications does not conclusively determine whether a decision is core policy. The Court contrasted, on one hand, budgetary allotments for departments, which will be classified as a policy decision because it is more likely to be a decision of the legislative or executive branches of government, and on the other hand, day-to-day budgetary decisions made by individual employees, which are unlikely to be policy decisions.
  4. The extent to which the decision was based on objective criteria: The more a decision is based on “technical standards or general standards of reasonableness” the more likely it can be reviewed for negligence, while the more a decision is based upon competing interests and value judgments the less likely a court can assess the decision without substituting its own value judgment.

The SCC also identified that:

  • The underlying rationale — protecting the legislative and executive branches’ core institutional roles and competencies — serves as an overarching guiding principle for how to weigh the four factors in the analysis. Thus, the nature of the decision along with the hallmarks and factors that inform its nature must be assessed with a view to protecting this important role of government.
  • Finally, the Court clarified that the fact that the word “policy” is found in a written document, or that a plan is labelled as “policy” may be misleading and is certainly not determinative of the question of whether it constitutes a “core policy”. Similarly, that a certain course of conduct is mandated by written government documents is of limited assistance. While core policy might be expected to be reduced to writing, this may depend on the public authority and the circumstances; implementation procedures may also be documented. The focus must remain on the nature of the decision itself rather than the format or the government’s label for the decision.

The SCC’s Consideration of the Facts of the Case

The Court found that the City’s decision in this case bore none of the hallmarks of a “core policy decision”, remarking specifically on the following facts:

  • First, the City’s public works supervisor did not have the authority to make a different decision with respect to the clearing of parking stalls, and so the decision was not one made at a “high level of authority”.
  • Second, there was no suggestion that the method of plowing the parking stalls on Baker Street resulted from a deliberative decision involving any prospective balancing of competing objectives and policy goals by the supervisor or her superiors. Indeed, there was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks; the City’s evidence is that this was a matter of custom.
  • Third, although it was clear that budgetary considerations were involved, these were not high-level budgetary considerations but rather the day-to-day budgetary considerations of individual employees.
  • Fourth and finally, the City’s chosen method of plowing the parking stalls could easily be assessed based on objective criteria as it was a technical decision and not one requiring the weighing of competing interests. The trial court would be well-equipped to determine whether the snowbanks posed an objectively unreasonable risk of harm (the standard of care question) as the safety of a road or sidewalk can be measured based on objective or commonly accepted standards.

Takeaways for Local Government Operations, Decision-making, and Policy Development

At a high level, here is the central takeaway from the decision: The SCC’s decision makes clear that the only decisions of local governments which will be shielded by the policy immunity defence are those based on public policy considerations that reflect the rationale for core policy immunity. In other words, those decisions which raise the risk that if a court were to weigh in, it would be second-guessing the decisions of the legislative or executive branches of government and substituting its own opinion on matters involving the complex weighing of competing economic, social, and political factors.

Following this decision, the team at SMS is creating a new set of advice for local governments on establishing policies that reflect the hallmarks of “core policy decisions”. If you are interested in receiving advice on this topic or a presentation to your group by SMS, please contact Josh Krusell, Jeff Locke, or Andrew Buckley for more information.