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Supreme Court gives guidance on "core policy" immunity

On October 21, 2021 the Supreme Court of Canada (SCC) released its decision in Nelson (City) v. Marchi, 2021 SCC 41 providing insight into the Court’s analysis of core policy immunity in the context of specific challenges to the winter maintenance decisions of Nelson, British Columbia.

Overview of facts

After a heavy snowfall, the City of Nelson (the City) plowed and sanded its streets pursuant to its written snow clearing and removal policies and unwritten practices. This winter maintenance included the clearing of snow in angled parking stalls on streets located in the downtown core. However, the City did not clear an access route to the sidewalk for drivers parking in the stalls. Ms. Marchi parked in one of the angled parking stalls and was injured while trying to cross the snowbank created by the City’s clearing.

Underlying proceedings

In the underlying proceeding, the City’s argued that Ms. Marchi’s claim was an attack on its core policy decision, which rendered it immune from negligence. The Trial Judge agreed and dismissed Ms. Marchi’s action on that basis. In the alternative, the Trial Judge also found that there was no breach of the standard of care, and that in the further alternative, if there was a breach, Ms. Marchi was the proximate cause of her own injuries. On appeal, the Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial. The City then appealed to the SCC.

Decision of the Supreme Court of Canada

While the SCC accepted that Ms. Marchi had proven that her circumstances fell within the scope of an established duty to care, it remained open to the City to prove that the relevant government decision was a core policy decision immune from liability in negligence.

The Courts have recognized that “core policy” decisions are a sphere of government decision-making that should remain free from judicial supervision based on the standard of care in negligence. These “core policy” government decisions — defined as “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors” — are to be shielded from liability in negligence.

In ascertaining whether a decision is one of core policy, the key focus is on the nature of the decision. The SCC identified four factors that assist in assessing the nature of a government’s decision: (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.

In applying these factors, the SCC stated that the core policy assessment was not with respect to the broader winter maintenance policy, but rather the City’s decision as to how to treat the parking area at issue. Even if the City’s written winter maintenance policy was a core policy, this did not mean that the creation of snowbanks without clearing pathways for direct sidewalk access was a matter of core policy. The City cleared the snow from the parking stalls by creating snowbanks along the sidewalks — thereby inviting members of the public to park in those stalls — without creating direct access to sidewalks. This decision was not a core policy, but a routine part of the City’s snow removal process. There was no indication the decision was a deliberative choice that involved the weighing of competing objectives and policy goals. Instead, the City’s evidence was that the decision was a matter of custom. The decision was also one that could be easily assessed by the Court based on objective criteria.

Accordingly, the SCC concluded that the City had not shown that the way it plowed the parking stalls was the result of a proactive, deliberative decision, based on value judgments to do with economic, social or political considerations and thus was not a core policy. The SCC returned the matter to the trial court for a new trial on the issues of the standard of care and causation.

Take away

This decision is informative regarding how a Court will approach arguments regarding whether impugned government action attracts core policy immunity, therefore defeating recognition of a common law duty of care. However, the decision will likely have little impact on situations where there is a statutory duty of care. For instance, in Ontario there is statutory duty to keep roadways in a reasonable state of repair and a statutory gross negligence standard applying to winter maintenance of sidewalks outlined in sections 44 and 42 of the Municipal Act, 2001 and City of Toronto Act 2006, respectively. The obligation to meet a statutory duty of care is unlikely to be defeated by arguing there is a “core policy” immunity. Where a statutory duty of care exists “policy” arguments are more usefully advanced in determining what is reasonable in the circumstances. In the gross negligence analysis, the Court will consider whether the municipality’s general policy with respect to ice and snow is a reasonable one and whether the municipality’s implementation of the policy on the occasion in question was reasonable. These arguments remain available to a municipality even without “core policy” immunity.

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