The SCC decision provides criteria for determining if a practice is 'core policy' or 'operational'
A BC slip-and-fall case sent back to the trial court by the Supreme Court of Canada last year was recently settled without a retrial. But even without readjudication, lawyers say it has created more clarity around liability considerations for core policy decisions by a government body.
Murphy Battista LLP’s Joe Murphy, one of the lawyers for the plaintiff in Nelson (City) v. Marchi, says, “The SCC has really narrowed the circumstances under which a policy decision is going to be successful as a defence to a negligence claim.”
Joe Murphy
He adds that the decision also sets out clear criteria for determining what a policy decision is and what is “operational.” It also confirms that “just because something is labelled a policy decision by a municipality or other government body, that doesn’t mean it automatically protects them from liability.”
Warren WhiteKnight, a partner at the Ontario firm Bergeron Clifford LLP, says the Marchi case “is really helpful” for both plaintiff and defence lawyers. “It tells you that if you are dealing with a municipal defendant or other government body, you have to see if their rules and regulations are written clearly and if the government body had proper deliberations and made decisions to create a core policy that would allow for immunity.”
However, Lyndsay Jardine of Wagners in Halifax says the decision does set out a clear plan for determining whether a practice is a policy decision or an operational matter. Lawyers acting in such negligence cases will likely have to do “a lot of heavy lifting” in the disclosure and discovery process to determine what is or is not a core policy.
Lyndsay Jardine
“There are pros and cons for lawyers for the plaintiff and the public authority,” Jardine says. “The question is whether it will prolong the litigation process or streamline it. We don’t know yet.”
The lawsuit against the City of Nelson that led to the SCC decision started when Taryn Marchi, then 28, sued the city for negligence after she injured her knee following a heavy snowfall in 2015.
At the Supreme Court of British Columbia trial, Marchi lost her case, with the judge saying she was “the author of her own misfortune” by attempting to walk over the snowbank in sneakers. She appealed the decision to the BC Court of Appeal, which decided in her favour in January 2020. Then the city, based on the advice of its insurers, appealed to the Supreme Court of Canada.
The case was never about whether Marchi, who ended up in a hospital in another city, was injured in the snowbank fall – both sides agreed that she was. However, the seven Supreme Court judges had to decide if a municipality’s core policies, such as the obligation to maintain its streets, were immune from negligence claims.
In October 2021, the court decided they were, but it also found problems with the city’s snow-clearing operations and ordered a new trial in BC’s Supreme Court.
The SCC outlined four factors to be considered in assessing whether the nature of a government’s decision was policy or operational:
The principle of policy immunity is a doctrine intended to create a separation of power so that courts aren’t stepping over and interfering with elected officials’ rights; it protects a municipality or other government from liability when that body makes a policy decision.
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.”
“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.
The city of Nelson, BC, claimed that its decisions about snowplowing – resulting in snowbanks along the city curbs that separated parking stalls from sidewalks – were policy decisions rather than simply operational ones.
The city’s decision on plowing its snow roads “bore none of the hallmarks of core policy,” Karakatsanis and Martin wrote, with Chief Justice Richard Wagner and Justices Michael Moldaver, Suzanne Côté, Malcolm Rowe and Nicholas Kasirer concurring.
“There is no suggestion that the method of plowing the parking stalls ... resulted from a deliberative decision involving any prospective balancing of competing objectives and policy goals,” the justices wrote. “Indeed, there was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks; the city’s evidence [was] that this was a matter of custom.”
While budgetary constraints were a factor, the SCC ruling said, “These were not high-level budgetary considerations but rather the day-to-day budgetary considerations of individual employees.”
The justices added: “This is why our jurisprudence has so often qualified the word ‘policy’ to focus on ‘true’ or ‘core’ policy, pointing toward the type of policy question that requires immunity.” 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.”
Anthony Burden, a partner at Field Law in Calgary, says that as a lawyer working with municipalities and insurance companies on slip-and-fall cases, he believes “the Marchi decision makes it easier to assess policy because the court has given additional clarity, though the bar is higher now.” He adds that the SCC decision will make it harder “to shield everything from liability” under the guise of policy.
Anthony Burden
“I wouldn’t recommend that, because the goal of a municipality should always be good governance and providing services, not trying to find liability loopholes,” he says. And even if it wanted to, Burden says it would be arduous to have the town or city council “debate and approve every single decision about garbage removal, snow removal and the rest.”
While the SCC ordered a retrial, Marchi and the city of Nelson settled the case in August. The agreement has a provision that the amount of the settlement be kept confidential.
Jardine says the SCC has done an excellent job of setting down the criteria for determining a core policy, “but then you have to apply it, practically speaking.” She notes that if a municipality is particularly aggressive in defending a negligence claim, “from the perspective of a plaintiff’s lawyer, it may take some deep and involved analysis, which could take years.”
She adds that a retrial might also have dived more deeply into whether a policy, even a core policy, is reasonable. For example, the plaintiff, Marchi, chose to climb over the snowbank because she felt there was no reasonable alternative for walking out of the sidewalk. Marchi’s lawyer, Murphy, says she would have had to walk a distance to the nearest corner, “putting her on a relatively narrow road in slippery conditions with one-way traffic coming up behind her. So she decided that climbing over the bank was a safer option, as others had done before.”
Says Jardine: “What the SCC decision does do is provide some commentary on the reasonableness in these particular circumstances. The parking stall was cleared, an obvious invitation to frequenting the businesses nearby, but what were the alternatives available to her? Were they reasonable?”
Marchi’s four factors for determining “operational” or “core policy”
Slip-and-fall snapshot
Sources: Canadian Institute for Health Information, City of Toronto Public Health
