In the recent decision of Nelson (City) v. Marchi, the Supreme Court of Canada clarified the distinction between core and non-core policy decisions. Specifically, the Court stated that “this appeal requires the Court to clarify how to distinguish immune policy decisions from government activities that attract liability for negligence.”
For the purposes of assessing liability, government decisions and actions are separated into two categories: core policy decisions and non-core policy decisions. Core policy decisions are shielded from liability, whereas non-core policy decisions are not. The underlying policy rationales for shielding a government from liability for core policy decisions are to honour the separation of powers and uphold the executive and legislative branch’s institutional roles.
The decision is an important one for municipalities, particularly as they make decisions in the coming months about snow removal and may be subject to tort claims. It also provides guidance about when a government entity faces the same kind of liability for negligence as a private citizen.
Background
After a heavy snowfall, the City of Nelson started plowing and sanding streets pursuant to its written snow clearing and removal policies and unwritten practices. Among the tasks completed by City employees was the clearing of snow in angled parking stalls on streets located in the downtown core. Employees plowed the snow to the top of the parking spaces, creating a continuous snowbank along the curb that separated the parking stalls from the sidewalk. The City did not clear a path to allow drivers parked in this area to access the sidewalk without crossing the snowbank.
The plaintiff, Ms. Marchi, parked her car in one of the angled parking stalls. Ms. Marchi walked across the snowbank to reach the sidewalk and her right foot fell through the snowbank, causing her serious injuries.
The parties agreed that she was entitled to $1 million in damages. In its defence, the City relied upon written and unwritten policies on snow removal and argued that its decisions were dictated by the availability of resources.
The Trial and Appeal Decisions
The trial judge dismissed Ms. Marchi’s claim, concluding that the City did not owe her a duty of care because its snow removal decisions were core policy decisions. In the alternative, the trial judge found there was no breach of the standard of care and, if there was a breach, Ms. Marchi was the proximate cause of her own injuries.
The Court of Appeal allowed Ms. Marchi’s appeal and concluded that the trial judge failed to properly distinguish between government policy and operation. Further, the Court of Appeal found the trial judge erred by accepting the City’s submission that all snow removal decisions were core policy decisions.
The Supreme Court of Canada’s Decision
The Supreme Court upheld the Court of Appeal’s decision and dismissed the appeal.
The Court first engaged in a duty of care analysis to determine whether the trial judge erred in determining that the City did not owe a duty of care to Ms. Marchi. The Court determined that the pre-existing duty of care established in Just v. British Columbia was analogous. In Just, the plaintiff’s car was hit by a boulder that fell off a hill above a public highway. In that decision, the Court held the municipality owed the plaintiff a duty of care to properly maintain the public highway.
For the core policy vs. non-core policy analysis, the Court noted that the definition of a core policy decision shielded the following decisions from negligence: “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.”
The Court clarified that core policy decisions are a “narrow subset of discretionary decisions” because discretion “can imbue even routine tasks”. Protecting all discretionary government decisions would therefore cast “the net of immunity too broadly”. Core policy decisions differ from operational decisions, which have been defined as the performance of policies or practical implementation of core policy decisions.
Four-Factor Test for Establishing a Core Policy Decision
The Supreme Court summarized the following four-factor test for determining whether a government entity’s decision is a core policy decision that is immune from liability in tort:
1. The level and responsibilities of the decision-maker
In this analysis, the court must consider how closely related the decision-maker is to a democratically-accountable official who bears responsibility for public policy decisions. The higher the level of the decision-maker, the more likely a judicial review of their decisions will raise a concern regarding separation of powers.
2. The process by which the decision was made
The more the process for reaching the decision was deliberative, required debate, involved input from different levels of authority, and was intended to have broad application, the more likely it will be considered a core policy decision.
3. The nature and extent of budgetary considerations
Government decisions “concerning budgetary allotments for departments or government agencies will likely be classified as policy decisions,” whereas day-to-day budgetary decisions of individual employees will likely raise separation of power concerns.
4. The extent to which the decision was based on objective criteria
The more a government decision weighs competing interests and requires value judgments, the more likely the court is to provide deference and avoid substituting its own value judgement. Alternatively, the more a decision is based on “technical standards or general standards of reasonableness,” the more likely it can be subject to judicial review.
In considering this four-factor test, the Supreme Court found that the City’s snow clearing from the parking stalls was not the result of a core policy decision immune from negligence liability. Rather, “it was a routine part of the City’s snow removal process, to which little thought was given.” The City, therefore, did not meet its burden of providing that its snow removal process was a core policy decision, and it owed the plaintiff a duty of care. The Court concluded that the regular legal principles of negligence apply when considering whether the City breached the duty of care and, if so, whether it should be liable to the plaintiff for damages.
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