Municipal Slip Up: Liability and Core Policy Immunity

The Supreme Court of Canada’s recent decision in Nelson (City) v Marchi, revisits the issue of municipal liability for negligence and determining when core policy immunity applies. Specifically, the Supreme Court determined whether the City of Nelson’s snow removal policy was a core policy, immune from negligence liability.

The City of Nelson was plowing and sanding streets after a heavy snowfall in accordance with its snow clearing and removal policies and practices. While clearing the snow, City employees plowed snow to the top of parking spaces, making a continuous snowbank at the curb which separated the parking stalls from the sidewalk.

The Plaintiff was a driver who parked in one of the parking stalls and attempted to access a business on the other side of the snowbank. While crossing the snowbank, the Plaintiff seriously injured her leg. The Plaintiff sued the City for negligence and the parties agreed that she suffered $1 million in damages.

At trial, the judge dismissed the Plaintiff’s appeal on the grounds that the City’s snow removal decisions were core policy decision immune from negligence liability. The British Columbia Court of Appeal disagreed that the snow removal policies were core policy and ordered a new trial. The City appealed to the Supreme Court of Canada.

Policy Decision Immunity vs. Operational Decision

The City relied on a policy called “Streets and Sidewalks Snow Clearing and Removal,” which set out the priority schedule for snow clearing, detailed that snow plowing would occur during the early morning hours, and provided that snow removal may occur as needed by buildup levels. The City also relied on various unwritten practices.

The Court looked to the jurisprudence on the issue of municipal negligence, which has established that a government authority may owe a duty of care to users of a public road or sidewalk, meaning they can be liable for negligence for injuries, unless there is a statutory provision to exempt the government authority from liability or the impugned decision is a core policy decision.

The Court reaffirmed that a core policy government decision is defined as “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.” Simply put, core policy decisions go beyond the day-to-day decisions that municipal employees may make in carrying out operations.

The Court reaffirmed that when distinguishing a core policy decision from an operational decision, the key focus is on the nature of the decision. Accordingly, the Court laid out four factors to be considered in assessing the nature of a government 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.

The Court found that the snow removal policy was an operational decision which bore none of the hallmarks of core policy, and accordingly, the City owed the Plaintiff a duty of care.

Takeaways for Municipalities

Municipalities should consider the following potential consequences coming from this decision:

Identifying and managing risks

  • Municipalities are not always immune from negligence claims.
  • Municipalities should review existing policies and practices to identify matters that may not be core policy immune and exposes municipalities to legal risks.

If you have questions about how this case may affect your city or municipality, we encourage you to reach out to a member of our municipal team.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.