Cities can be sued over 'operational' decisions resulting in tort claims: SCC

A city's snow clearance and removal was an operational, not a policy decision, and therefore not immune from negligence claims, a unanimous Supreme Court ruled today in a decision that clarifies how core policy decisions should be determined in a torts context.

In Nelson (City) v. Marchi, the Supreme Court upheld the British Columbia Court of Appeal’s decision that a woman’s injury, resulting from climbing over a snowbank created by city workers plowing the roads, should return to trial.

The court “restated the test they tried to lay down in a number of prior decisions, [but] this one expresses more distinctly the evidentiary burden that a government will have to meet” to satisfy the requirements of a core policy decision versus an operational decision, says Jay Ralston, a partner in Murray Ralston PC in Barrie, Ont., and counsel for the intervener Ontario Trial Lawyers Association in the case.

Policy decision immunity is a doctrine created by judges, intended to create “a separation of power, so that courts aren’t stepping over and interfering with elected officials’ rights, and vice versa,” Ralston says. Policy decision immunity therefore protects a municipality or other government from liability when that government makes a policy decision.

In this case, the City of Nelson, B.C. claimed that its decisions about snowplowing -- which resulted in snowbanks being created along the city curbs which separated parking stalls from sidewalks -- were policy decisions rather than simply operational ones. The Supreme Court “reaffirmed that it is really the higher levels of elected officials and public servants, related or close to those elected officials, that are more likely to be making policy decisions,” Ralston told Canadian Lawyer.

In their reasons, Justices Andromache Karakatsanis and Sheilah Martin noted the definition of “policy” as “a high-level overall plan embracing the general goals and acceptable procedures especially of a governmental body.

“This is why our jurisprudence has so often qualified the word policy to focus on ‘true’ or ‘core’ policy, pointing towards the type of policy question that requires immunity,” they wrote. “Accordingly, 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.”

In other words, “simple words don’t make something policy,” Ralston notes. “So just by saying in a document that this is a policy decision does not make it that; it’s the nature of the decision itself that matters,” and who makes that decision.

The court outlined four factors with which to assess whether the nature of a government’s decision is policy or operational: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria.

“The underlying rationale — protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers — serves as an overarching guiding principle for how to weigh the factors in the analysis,” the justices wrote.

In this case, the City’s decision in how to plow its roads of snow “bore none of the hallmarks of core policy,” Justices Karakatsanis and Martin wrote, with Chief Justice Richard Wagner and Justices Michael Moldaver, Suzanne Côté, Malcolm Rowe and Nicholas Kasirer concurring.

“Although the extent to which the supervisor was closely connected to a democratically-elected official is unclear from the record, she disclosed that she did not have the authority to make a different decision with respect to the clearing of parking stalls (the first factor). In addition, there is 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 (the second factor). Although it is clear that budgetary considerations were involved, these were not high-level budgetary considerations but rather the day-to-day budgetary considerations of individual employees (the third factor).”

“While disappointed in the result itself, the Municipal Insurance Association of British Columbia (MIABC) welcomes the Supreme Court of Canada’s decision in Nelson (City) v Marchi, 2021 SCC 41,” the MIABC said in an email provided by counsel to the appellant. “The decision is an important development in tort law, and provides helpful clarity on the long-debated question of what decisions made by public authorities are immune from tort liability as policy decisions.”

The facts

Following a heavy snowfall in Nelson, British Columbia in January 2015, the city started plowing and sanding the streets, as was its usual practice. Nelson’s work crews plowed the main commercial street in a manner that created snowbanks or “windrows” along the curb that separated parking stalls from the sidewalk. Taryn Joy Marchi parked her car in an angled parking spot on the north side of a main commercial street, and seeing no other means of getting onto the sidewalk she tried to cross the snowbank. Her right foot dropped through the snowbank, and she suffered serious injury to her leg that required hospitalization in another city. She sued the City, alleging that it had been negligent in leaving windrows along the road.

The trial judge dismissed the claim and concluded the city did not owe Marchi a duty of care because its snow removal decisions were core policy decisions. In the alternative, he also found that there was no breach of the standard of care and that, even if there was a breach, Marchi was the proximate cause of her own injuries, as she had attempted to walk over a snowbank in inappropriate footwear (sneakers), and didn’t test the snow crust to see if it could bear her weight. The Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial.

In Thursday’s judgment the Supreme Court agreed with the appellate court that the trial judge was in error on all three conclusions.

Duty of care

Since its snow removal decisions were not core policy decisions, the City of Nelson did owe Marchi a duty of care, the court found. It noted the Anns/Cooper test used in Canada, which “provides a unifying framework to determine when a duty of care arises under the wide rubric of negligence law, including for allegations of negligence against government officials. But as Cooper and subsequent cases make clear, the framework applies differently depending on whether the plaintiff’s claim falls within or is analogous to an established duty of care or whether the claim is novel because proximity has not been recognized before.”

The Anns/Cooper test must first determine whether the question of duty of care has arisen before in the same context; is it a novel duty of care? If it is, “the full two-stage Anns/Cooper framework applies,” the justices wrote.

“Under the first stage, the court asks whether a prima facie duty of care exists between the parties. The question at this stage is whether the harm was a reasonably foreseeable consequence of the defendant’s conduct, and whether there is ‘a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff’ …

”If there is sufficient proximity to ground a prima facie duty of care, it is necessary to proceed to the second stage of the Anns/Cooper test, which asks whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care … ”

The court simplified the test in cases where there are previous, analogous duties of care, says Ralston. In this case the Supreme Court did not go though the entire test, “because essentially, the court said they've already had an analogous decision that creates a liability here [in Just v. British Columbia], … but they went on to clarify the law on how to go through that Anns analysis. If there’s a previously recognized duty of care in circumstances, and they’re analogous to the current case, you … can skip the second part of the Anns/Cooper test.”

Budgetary considerations, standard of review

“[T]he mere presence of budgetary, financial, or resource implications does not determine whether a decision is core policy,” the court noted in its reasons. In this way, the court also confirmed that budgetary considerations in policy decisions “are the grand over-scheme budgets, not the individual, because … virtually every action by government will have some budgetary” significance, Ralston says.

Going forward, decisions in these cases will be fact-driven, he says. “There will still have to be an individual evidentiary basis from a government or government actor saying why it’s policy.” The court also affirmed that the standard of review on appeal in such cases is correctness, he noted.

“The decision in Nelson (City) v Marchi will be a leading precedent in municipal and tort law for years to come” said Tom Barnes, CEO of MIABC, in an email. 

“For over thirty years our organization has handled the bulk of liability claims brought against local governments in B.C. … Even our most experienced claims staff and defence lawyers occasionally have difficulty reconciling various judgements with each other or the facts of the claim they are seeking to resolve. This decision provides welcome clarity to what has sometimes been a difficult area of law. … The Court has also provided helpful guidance to litigants wrestling with these issues, which will assist our counsel in applying the policy defence when defending our members in court.”

Editor’s Note: this story has been updated to include comments from the appellant.