Supreme Court Of Canada Clarifies Applicability Of Governmental Policy Immunity

• Published date: 25 October 2021
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Gowling WLG
• Author: Ms Erin Farrell, Belinda A. Bain, Heather Fisher, Benoit Duchesne and Michael Polowin

Overview

In its decision in Marchi, the Supreme Court of Canada ("SCC") provides helpful guidance to municipalities and other government actors regarding the types of decisions that may be immune from liability in negligence. The SCC explains that "core policy decisions" by governments will not give rise to 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."¹ This is in contrast to "operational" decisions made by governments, which are concerned with the implementation of policies and are not shielded from liability in negligence. However, the question of whether a decision is a "true" or core policy decision is a "vexed one, upon which much judicial ink has been spilled."²

In determining whether a decision is one of core policy, the SCC in Marchi helpfully provides four non-exhaustive factors to help in assessing the nature of a government decision. These factors will provide some clarity to government decision-makers about their potential liability in negligence as well as in other situations.

Background Facts

Ms. Marchi suffered a leg injury following heavy snow in Nelson, BC. The City's workers plowed and sanded the main commercial streets in Nelson, following both written policies and unwritten practices. They did so in a manner that created "windrows," continuous snowbanks along the curb separating parking stalls from the sidewalk. The plaintiff parked in one of the stalls and injured her leg while crossing over the windrow, attempting to access the sidewalk and a nearby business. Ms. Marchi commenced an action against the City, alleging that it had been negligent in leaving windrows along the road, leaving no space for pedestrians to cross from the roadway onto the sidewalk.

Negligence

In order to establish negligence a plaintiff needs to show: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant's behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant's breach.

The first step, central to this case, is establishing that the defendant municipality owed the plaintiff a duty of care, applying the well-known Anns/Cooper test.³ The court does not engage in the duty of care analysis if the court has previously recognized a duty of care exists for the particular relationship in question.⁴ However, if the court has not previously recognized a duty of care is owed, it will apply the Anns/Cooper test to determine:

1. whether a prima facie duty of care exists (considering proximity and foreseeability),⁵ and if so
2. whether there are residual policy concerns outside the parties' relationship that should negate the prima facie duty of care.⁶ For example, if the law already provides a remedy, if recognition of the duty of care would create the spectre of unlimited liability to an unlimited class, or if there are other policy reasons for not recognizing the duty of care.⁷ These other concerns may include statutory immunity (statutory provisions that exempt the defendant from liability), and immunity for true policy decisions (i.e. core policy immunity).

Core policy immunity can be raised in cases where the duty of care alleged is novel or previously recognized.⁸

The main issue at trial, and the subject of this bulletin, was whether the City's decisions were core policy decisions immune from liability in negligence.

The Trial and British Columbia Court of Appeal Decisions

The trial judge dismissed the action finding that the City's decisions regarding plowing activities were bona fide policy decisions, governed by budgetary, social and...