How the Nelson v. Marchi SCC decision clarified the policy-decision immunity defence

In January 2015, Taryn Joy Marchi parked her car next to a snowbank in Nelson, British Columbia. There had been a heavy snowfall and city workers had just ploughed the streets. When Marchi exited her vehicle and stepped over the snowbank onto the sidewalk, she seriously injured her leg. She sued the city for negligence.

The case made it to the Supreme Court of Canada. Last year’s decision in Nelson (City) v. Marchi provided essential guidance for relying on the policy-decision immunity defence to a claim of negligence.

Courts and legislators have long recognized the principle that “core policy decisions” of municipalities and other public bodies are immune to claims of negligence, says Pino Cianfarani, a partner at Lerners LLP. In Ontario, the principle is codified under s. 450 of the Municipal Act. A core policy decision is “based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith,” said the SCC in Nelson (City) v. Marchi. These decisions are immune from negligence claims to protect the legislative and executive branches’ core institutional roles and competencies from judicial interference, said the court.

Cianfarani will examine what Nelson (City) v. Marchi means for municipalities and other public institutions at a Canadian Lawyer webinar, Liability and Risk Management Trends in Municipal and Provincial Government, on May 4.

In the Marchi case, the city was successful at trial. The court found that snowploughing represented a core-policy decision and was immune from a negligence claim. Marchi appealed, and the B.C. Court of Appeal ordered a new trial. Nelson then appealed to the Supreme Court of Canada.

In its decision, the top court dismissed the appeal. Writing for the unanimous court, Justices Andromache Karakatsanis and Russell Brown distinguished core policy decisions, which are immune from negligence claims, and operational decisions to carry out a policy, which are not.

Finding that the city owed Marchi a duty of care, the court ordered a new trial to determine whether that duty of care was broken.

The ruling provides guidance on the kind of evidence courts require when a public body seeks to rely on the immunity defence, says Cianfarani. Karakatsanis and Brown listed four factors courts will look for when analyzing whether the decision was one of core policy. The first is “the level and responsibilities of the decision-maker.” Second, courts will review “the process by which the decision was made.” The third consideration is “the nature and extent of budgetary considerations. Lastly, the court will examine “the extent to which the decision was based on objective criteria.”

 “What the Supreme Court has said is that you can no longer simply indicate that this was a policy decision, without leading specific evidence to show how this policy issue was considered, and, ultimately, how the decision was made,” says Cianfarani.

“If you are able to lead that evidence, then you should be able to rely on the policy decision immunity under both the common law and in the relevant statutory schemes.”

Cianfarani’s practice involves defending municipalities, police services and other public institutions.