Following the first heavy snowfall of the season, the City of Nelson (the City) put into action its snow clearing plans in accordance with its existing written and unwritten policies. Among the tasks completed by the City that day, employees plowed the parking spaces in the downtown core creating snowbanks along the sidewalks blocking access from cars that would park in the newly cleared spots and businesses along the sidewalk. Having plowed the parking spaces and created the snowbanks, City employees continued down their list of priorities before returning to clear the snow banks later that week. In the interim, Taryn Marchi (Marchi), was injured while she attempted to cross the snowbank between her parked car and the cleared sidewalk.

Marchi subsequently commenced an action against the City in negligence, alleging a breach of the standard of care owed by the City to those using its streets and sidewalks. The City defended the claim, principally on the basis that the City did not owe Marchi a duty of care as its decision with regards to how and when to clear sidewalks in the downtown core was a “core policy” decision and therefore immunized from judicial review per the second stage of the analysis outlined in Just v British Columbia [1989] 2 SCR 1228. The City was successful at first instance, while Marchi was successful on appeal to the BC Court of Appeal.

Just established that public authorities owe a prima facie duty of care to users of public highways, but that, at the second stage of analysis, such a duty may not be imposed where there is a valid basis for its exclusion. The Court in Just highlighted two potential bases of exclusion: statutory exemption from liability or where the duty of care arose out of a “true” policy decision. As a further refinement, while the policy decision itself would not give rise to tort liability, the operational implementation of that policy could give rise to a duty of care in negligence. While the policy/operations distinction has been a key determination for public authorities since Just, it has often been difficult to determine in advance and given rise to significant risk at trial.

Following further appeal by the City, the Supreme Court of Canada has now taken the opportunity to provide a framework for structuring the second stage of the Just analysis as to whether a duty of care should not be imposed on the decision of a public authority as a “true” policy decision as opposed to an operational implementation of that policy.

Reviewing the relevant case law, the Supreme Court of Canada identified four factors that could assist in assessing the nature of a public authority’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.

As a caveat to these newly identified categories, the Court cautioned that the mere presence of budgetary, financial, or resource implications does not determine whether a decision is a core policy, and that the presence of the word “policy” in a written document of the labelling of a plan as a “policy” is not determinative.

In setting out the above factors for consideration, the Court underlined that each must be considered in light of the primary rationale for shielding core policy decisions from liability in negligence: the separation of powers. Decision-makers in the executive and legislative branches must be free to carry out their respective competencies, accountable to the electorate, without the potential chill of judicial oversight.

Applying the proposed analytical framework to the facts before them, the Court found that the City’s decision to create the snowbanks without clearing a path for pedestrians constituted an operational decision giving rise to a duty of care. The policy documents did not mandate the creation of the impugned snowbank; the supervisor responsible for the execution of the plan did not have authority to deviate from the existing policy documents and was not democratically accountable; the plan was not arrived at following a consideration of various interests, and indeed did not appear to have been discussed at all; budgetary decisions were involved, however, they were day-to-day concerns rather than high-level ones; and, the facts upon which the decision were based could be objectively reviewed by the Court – namely, did the snowbanks pose an unreasonable risk of harm.

As a further note, the Court found that the trial judge fell into error when he identified the policy decision under review as the City’s general snow removal policy and priorities for street cleaning, not the manner in which the particular street on which the incident occurred was cleared. The Court clarified that, as the duty attaches to the negligent conduct alleged – in this case how the particular street was cleared, the policy/operational analysis must be based on the particular conduct. Failure to identify the impugned conduct with precision is likely to give rise to a conflation of numerous decisions and provide an overbroad immunity to a public authority on the basis of policy.

Having found that the City had failed to establish that its street clearing decision was a policy decision and having determined that the City did owe Marchi a duty of care, the Court remitted the matter back to the trial court for a further hearing. Whether the City had breached the applicable standard of care and whether they caused Marci’s injuries therefore awaits the further reasons of the trial division.

There is little doubt that there has been debate at the local government level as to how to apply the policy / operational distinction, and that the Supreme Court took this opportunity to clarify the issue, but it may come at a very difficult time for local governments under considerable stress to adjust services to meet the ongoing needs of the pandemic and the resulting economic challenges they face. Following Marchi, we can expect to see more cases commenced and maintained against local governments in the construction, highways, and road maintenance areas and may well see an increasing reluctance of local governments to assume responsibility for new obligations.

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