Nelson V. Marchi: Separation Of Powers And Core Policy Immunity

• Published date: 09 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Gowling WLG
• Author: Mr John Wilson

On October 21, 2021, the Supreme Court of Canada released its decision in Nelson (City) v Marchi ("Marchi").¹ In the course of dismissing the City of Nelson's appeal and ordering a new trial on the question of whether the City's snow clearing practices fell below the standard of care and caused Ms. Marchi's injuries, the Court revisited the question of what public authority decisions can be considered "core policy" matters that do not attract negligence liability.

Marchi's potential significance for municipalities and their insurers is well-covered by my colleagues.² In contrast, this brief comment, written for counsel arguing and courts hearing policy immunity defences, does three things:

Part I briefly sets out the facts in Marchi and the decision's judicial history.

Part II outlines the two central doctrinal changes in Marchi, namely the articulation of the separation of powers justification for "core policy" immunity and the resulting new framework for analysing the issue. Importantly, those changes orient the analysis around a single, overarching question of law: whether the nature of the impugned act or decision falls within the core institutional competencies of another branch of government, such that subjecting it to private law scrutiny would offend the separation of powers.

Part III explains how, in light of that central question, the court's task has changed, and what jurisprudential resources counsel and courts have to resolve the question in particular cases. It ends on a hopeful note: by instructing courts to squarely address the underlying and difficult separation of powers questions raised by "core policy" immunity, perhaps Marchi can lead us out of decades of judicial and academic confusion.³

Part I: Facts and judicial history

The underlying facts are straightforward: one January night in 2015, after parking her car on Baker Street in downtown Nelson, British Columbia, Taryn Joy Marchi stepped into a ploughed snowbank and sustained a significant leg injury. She sued the City, alleging it had been negligent by creating the snowbank without providing direct access to sidewalk.⁴

The trial judge, McEwan J, dismissed Ms. Marchi's claim. He accepted the City's arguments, including its bona fide policy defence: he found that the snow had been cleared in accordance with its stated policy, which was itself not unreasonable nor the result of a manifest lack of appreciation for the attendant risks.⁵

A unanimous panel of the British Columbia Court of Appeal allowed Ms. Marchi's appeal, finding, inter alia, that McEwan J erred in accepting the City's submission that all snow clearing decisions - whether made by the Council, a Works Superintendent, or street crews - were "policy" decisions that should be insulated from judicial scrutiny, rather than "operational" decisions that could ground a duty of care.⁶

The City was granted leave to appeal to the Supreme Court in August of 2020 and the appeal heard in March 2021.⁷

Part II: The decision in Marchi and the new central question

Writing for a unanimous Court, Justices Karakatsanis and Martin dismissed the City's appeal and ordered a new trial.⁸ On the central issue - the scope of public authority liability in negligence - they held that the trial judge had erred in finding that the City's snow...