Cities in Canada can be held liable for negligence claims, even if the injuries result from policy decisions.
In Nelson (City) v. Marchi 2021 SCC 41, the Supreme Court of Canada ruled that cities owe a duty of care to people in their cities even when an injury results from a so called policy decision.
What is a “duty of care”?
A person making a negligence claim must prove four things in court:Nelson (City) v. Marchi
a duty of care,
a breach of that duty,
the cause, and
A duty of care means the other person or organization was required to do, or avoid doing, something that could likely cause harm.
Marchi sued the City of Nelson, BC, for her injuries that happened as she attempted to surmount a snowbank blocking her access to the sidewalk from a plowed public parking space in the city’s downtown core.
The snowbank resulted from the city’s snow clearing policy. The city claimed that their policy to clear snow from roadways was pursuant to “core policy” decision — rather than simply operational implementation.
While the trial judge accepted the argument and dismissed the case, the BC Court of Appeal reversed the decision and the Supreme Court of Canada dismissed the City of Nelson’s appeal.
In its ruling, the Supreme Court of Canada said that:
Core policy decisions 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. Core policy decisions are immune from negligence liability because the legislative and executive branches have core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight. A court must consider the extent to which a government decision was based on public policy considerations and the extent to which the considerations impact the rationale for core policy immunity.
In addition, four factors emerge that help in assessing the nature of a government’s decision:
- the level and responsibilities of the decision-maker;
- the process by which the decision was made;
- the nature and extent of budgetary considerations; and
- 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.
Thus, the nature of the decision along with the hallmarks and factors that inform its nature must be assessed in light of the purpose animating core policy immunity. But the mere presence of budgetary, financial, or resource implications does not determine whether a decision is core policy. Further, 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.
The Court had an opportunity to apply the full two‑stage duty of care framework to a case involving personal injury on a public road in Just v. British Columbia,  2 S.C.R. 1228. At the prima facie stage, the Court held that users of a highway are in a sufficiently proximate relationship to the province because in creating public highways, the province creates a physical risk to which road users are invited. The Court found that the duty of care should apply to public authority defendants unless there is a valid basis for its exclusion: first, statutory provisions that exempt the defendant from liability, and second, immunity for true policy decisions. 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. The factors uniting cases under the Just category are: a public authority has 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 the road or sidewalk in a reasonably safe condition. Where these factors are present, the Just category will apply, obviating the need to establish proximity afresh. Therefore, 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.
A lawyer who argued the case on behalf of Ontario Trial Lawyers Association, Jay Ralston, also highlighted the importance of the court indicating that governments must adduce evidence as to the means and nature of their decision to prove that it’s policy. “It keeps the onus squarely on the government, and gives a little more direction that it should be higher levels of … government actors that are closer to the politically elected decision makers” for the policy immunity to apply, he suggested.