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Monday Morning Case Bites for October 25, 2021

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Steven Graham

Nelson (City) v Marchi, 2021 SCC 41
Slip and Fall | Municipal Liability | Negligence | Duty of Care

The Plaintiff suffered bodily injuries when she fell leaving a parking lot cleared by the City of Nelson. The contractor cleared the parking lot and left a mound of snow on the edge of the lot, with no path to access the businesses. The Plaintiff was attempting to climb the snow bank and fell, suffering injuries. The BC Supreme Court dismissed her claim, concluding that the City of Nelson did not owe her any duty of care since snow removal was a core policy decision. The trial judge also determined that even if there was a duty of care, the standard of care had not been breached and the Plaintiff was responsible for her own injuries. The Court of Appeal found that the trial judge erred in all of the above conclusions and ordered a new trial. The matter was then appealed to the Supreme Court of Canada.

The Supreme Court maintained that core governmental policy decisions are shielded from liability in negligence, citing R v Imperial Tobacco (2011 SCC 42). At the heart of this appeal was how to determine what constitutes a core policy decision:

[3]                             […] We conclude that the rationale for core policy immunity serves as an overarching guiding principle. Core policy decisions are immune from negligence liability because each branch of government has a core institutional role and competency that must be protected from interference by the other branches. We identify four factors from this Court’s jurisprudence that help 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. The separation of powers rationale animating the immunity guides how the factors weigh in the analysis.

 On the first question of whether the City owed the Plaintiff a duty of care, the Supreme Court noted their decision in Just v British Columbia [1989] 2 SCR 1228 established a duty of care owed by public authorities to road users to keep roads reasonably safe. In that case, a driver was injured by a boulder falling onto a highway. Having found a prima facie duty of care, the Court noted exceptions:

 [22]                        At the second stage, the Court in Just did not have residual policy concerns about indeterminate liability or the effect of recognizing a duty on other legal obligations. The Court found that the duty of care should apply to public authority defendants “unless there is a valid basis for its exclusion” (Just, at p. 1242). The Court referred to two such bases: first, statutory provisions that exempt the defendant from liability, and second, immunity for “true” policy decisions (pp. 1240-44). While such policy decisions are exempt from claims in negligence, the operational implementation of policy may be subject to the duty of care in negligence.

In Just, the system of highway inspection was found to be operational in nature, such that it could be reviewed by the Court to determine if it was reasonable. The Supreme Court quoted the reasoning from Just:

Here what was challenged was the manner in which the inspections were carried out, their frequency or infrequency and how and when trees above the rock cut should have been inspected, and the manner in which the cutting and scaling operations should have been carried out. In short, the public authority had settled on a plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described [in Sutherland Shire Council v. Heyman (1985), 1988 ABCA 234 (CanLII), 157 C.L.R. 424 (H.C.), at p. 469] as “the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness”. They were not decisions that could be designated as policy decisions. Rather they were manifestations of the implementation of the policy decision to inspect and were operational in nature. As such, they were subject to review by the Court to determine whether the respondent had been negligent or had satisfied the appropriate standard of care.

The principles from Just have been subsequently applied in a number of cases where public authorities have undertaken to maintain a public road or sidewalk to which the public is invited, and the Plaintiff alleges they suffered personal injury as a result of the public authority’s failure to maintain it in a safe condition. If these factors are present, the Plaintiff need not establish proximity.

The Supreme Court found that on the facts of this case, the City had invited members of the public to use the streets and access the businesses adjacent to them by plowing. The Court determined that the Just category applies in situations where someone suffers injuries as a result of a snowbank created by a government defendant on a road and sidewalk, and as such the Plaintiff had proven a duty of care existed. It was then up to the City to prove that the decision fell within a core policy immune from negligence.

The Court was careful to maintain that government decisions with respect to maintenance do not all automatically fall within the Just category:

[34]                        Nonetheless, the decision in Just did not decide for all future purposes when an impugned government decision with respect to road maintenance is core policy. The core policy analysis in one case will not necessarily apply to other cases because the factual nature of a decision will likely vary from case to case. While other stage two concerns, like indeterminate liability, need not be taken into account because they were rejected in Just, it will be open to a public authority to raise core policy immunity in each case depending on the factual circumstances.

[35]                        As the City acknowledged before this Court, the onus is always on the public authority to establish that it is immune from liability because a core policy decision is at issue. Thus, once a plaintiff proves that her case falls within the Just category, a duty of care will be imposed, unless the public authority can show that the relevant government decision is protected by core policy immunity. In addition, the government decision must neither be irrational nor taken in bad faith (Imperial Tobacco, at para. 90).

The Supreme Court then considered whether the decision by the City was a core policy decision, which the Court noted was a highly fact-specific and difficult inquiry. Certain fundamental considerations were cited, noting a distinction between public policy decisions (protected) and the practical implementation of the formulated policies (not protected):

[51]                        Nevertheless, our jurisprudence provides helpful guidance. Core policy decisions, shielded from negligence liability, are “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” (Imperial Tobacco, at para. 90). They are a “narrow subset of discretionary decisions” because discretion “can imbue even routine tasks” and protecting all discretionary government decisions would therefore cast “the net of immunity too broadly” (paras. 84 and 88).

[52]                        Activities falling outside this protected sphere of core policy — that is, activities that open up a public authority to liability for negligence — have been defined as “the practical implementation of the formulated policies” or “the performance or carrying out of a policy” (Brown, at p. 441; see also Laurentide Motels, at p. 718). Such “operational” decisions are generally “made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness” (Brown, at p. 441).

The Supreme Court noted the focus is on the nature of the decision, with one indication being that core policy decisions are typically made by persons with high levels of authority within the government. These decisions often pertain to planning, determining the boundaries of a government, and budgetary allotments for governmental agencies or departments. The Court provided a helpful framework for analysis:

[56]                        Thus, four factors emerge from this Court’s jurisprudence that help 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.

The Court noted, importantly, that the mere presence of financial implications does not automatically make a decision a core policy decision; the authority from Just was that it was budgetary allotments which were immune from liability. The Court also cautioned that the mere use of ‘policy’ in a written document or plan are also not determinative of the issue; Courts must focus on the nature of the decision rather than the formal name or label for it.

The first consideration pertains to the level and responsibilities of the decision-maker:

[62]                        […] With this factor, what is relevant is 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 within the executive hierarchy, or the closer the decision-maker is to an elected official, the higher the possibility that judicial review for negligence will raise separation of powers concerns or have a chilling effect on good governance. Similarly, the more the job responsibilities of the decision-maker include the assessment and balancing of public policy considerations, the more likely this factor will lean toward core policy immunity. Conversely, decisions made by employees who are far-removed from democratically accountable officials or who are charged with implementation are less likely to be core policy and more likely to attract liability under regular private law negligence principles (Just, at pp. 1242 and 1245; Imperial Tobacco, at para. 87).

With respect to how the decision is made:

[63]                        […] The more the process for reaching the government decision was deliberative, required debate (possibly in a public forum), involved input from different levels of authority, and was intended to have broad application and be prospective in nature, the more it will engage the separation of powers rationale and point to a core policy decision. On the other hand, the more a decision can be characterized as a reaction of an employee or groups of employees to a particular event, reflecting their discretion and with no sustained period of deliberation, the more likely it will be reviewable for negligence.

Considering budgetary factors:

[64]                        […] A budgetary decision may be core policy depending on the type of budgetary decision it is. Government decisions “concerning budgetary allotments for departments or government agencies will be classified as policy decisions” because they are more likely to fall within the core competencies of the legislative and executive branches (see, e.g., Criminal Lawyers’ Association, at para. 28). On the other hand, the day‑to‑day budgetary decisions of individual employees will likely not raise separation of powers concerns.

Finally, whether the decision is based on objective criteria:

[65]                        […] The more a government decision weighs competing interests and requires making value judgments, the more likely separation of powers will be engaged because the court would be substituting its own value judgment (Makuch, at pp. 234-36 and 238). Conversely, the more a decision is based on “technical standards or general standards of reasonableness”, the more likely it can be reviewed for negligence. Those decisions might also have analogues in the private sphere that courts are already used to assessing because they are based on objective criteria.

Applying the above analysis to the facts of the case, the Supreme Court noted the trial judge based his conclusion on the fact that the City’s decision was based on the availability of resources, the written policy mandate, and several ‘unwritten policies’ for snow removal. The Plaintiff argued that the trial judge focused on snow removal in general rather than the specific impugned decision, being the clearing of snow from the parking stalls at the location in question and the created of snowbanks without ensuring safe access to the sidewalks. The Supreme Court accepted the Plaintiff’s arguments:

[76]                        […]At issue is the City’s clearing of snow from the parking stalls in the 300 block of Baker Street by creating snowbanks along the sidewalks — thereby inviting members of the public to park in those stalls — without creating direct access to sidewalks. Even if the written Policy was core policy, this does not mean that the creation of snowbanks without clearing pathways for direct sidewalk access was a matter of core policy. In a duty of care analysis, the decision or conduct at issue must be described with precision to ensure that immunity only attaches to core policy decisions (see, e.g., Imperial Tobacco, at para. 67). The duty asserted must be tied to the negligent conduct alleged. In this case, the plaintiff claims that the City was negligent in how they actually plowed the parking spaces. The trial judge’s conclusion that the “City’s actions were the result of policy decisions” was overbroad, merging together all of the City’s snow removal decisions and activities. The City’s submissions before this Court do the same.

[77]                        Second, we agree with Ms. Marchi that the trial judge placed too much weight on the label of “policy”, appearing to accept without question the City’s description of its unwritten snow removal practices as “unwritten policies”. As we have stated above, however, the word “policy” cannot be determinative of whether government conduct should be immune from negligence liability. The trial judge’s conclusion that all of the City’s unwritten snow removal practices were “unwritten policies” improperly coloured his conclusion that all of the City’s snow removal practices were core policy.

[78]                        Third, the trial judge improperly treated budgetary implications as determinative of the core policy question. The City also goes as far as saying that all of its decisions about extending snow removal hours were core policy decisions because they struck a balance between preserving the budget for future snow events and responding appropriately to the early January snowfall. Again, as noted above, whether a government decision involved budgetary considerations cannot be a test for whether it constituted core policy: even the most routine ones involve some consideration of budget or the scarcity of resources.

The Supreme Court determined that the decision to create snowbanks along the sidewalks without ensuring access to the sidewalks was not the result of a core policy decision, but rather a routine part of the snow removal process to which little thought was given. The Supreme Court noted that the evidence from the City’s witness (the plowing supervisor) was that changing the way the City plowed the streets would have required someone from a higher position of authority than herself. There was no evidence that the method of plowing the stalls on that specific street was a result of deliberative decision-making and balancing policy goals. While budgetary considerations were at play, they were day-to-day in nature. The Supreme Court found that the decision as such lacked the hallmarks of core policy and as such determined the policy was not immune from negligence.

The Supreme Court then determined that the trial judge had erred in applying the standard of care by importing considerations relating to core policy immunity into standard of care, and failing to consider the practices of neighboring municipalities.

The Supreme Court also rejected the trial judge’s conclusion that the Plaintiff assumed the risk in crossing the snow bank and was responsible for her injuries. The Supreme Court maintained the causation analysis requires considering whether the defendant’s breach caused the Plaintiff’s loss and whether the loss suffered was not too remote from the breach. The Supreme Court found that it was unclear if the trial judge made a finding on factual causation, and never addressed the question of remoteness. Focusing on the Plaintiff’s conduct is relevant to a defence, which is distinct from the causation analysis. The Supreme Court also found the trial judge erred in applying the voluntary assumption of risk to the Plaintiff’s decision, since there was no evidence to conclude the Plaintiff explicitly or implicitly bargained away her right to sue for her injuries.

Accordingly, the Supreme Court set aside the trial judgment, and returned the matter to trial to determine the standard of care and causation questions.