Slippery Snowbanks & Municipal Liability: When is a Policy Not a Policy?
Published:
October 29, 2021
Author(s):
On October 21, 2021, the Supreme Court of Canada clarified the law concerning the circumstances in which government organizations – including municipalities – are exposed to liability for negligence. The Court’s decision in Nelson (City) v. Marchi adds further detail to its 1989 decision in Just v. British Columbia on the scope of the duty of care of public institutions, and the distinction between policy and operational decisions.
Although the distinction between “true” policy and operational decisions remains difficult to resolve, the Court’s decision offers further guidance to government organizations, municipalities, and their insurers in dealing with certain types of negligence claims. Government organizations and municipalities are well advised to review the Court’s guidance as to the distinction between policy and operational decisions, and not assume that because a decision is reflected in a written policy, it’s determinative of the issue. They should also undertake periodic review of unwritten practices to ensure there are no unintended hazards created on the job by municipal workers or other agents. It’s impossible to account for all risks. However, having well-developed and fine-tuned guidelines will help minimize the potential for claims arising from decisions of government organizations and municipalities.
The Case
The facts of the case are straightforward. In January 2015, there was a heavy snowfall in the City of Nelson. In accordance with its snow removal policy (including unwritten practices), the City plowed, sanded, and created snowbanks between parking spots and the sidewalk. In doing so, the City left no direct access to the sidewalk from the parking spots. Ms. Marchi parked in one of the spots and attempted to cross over the snowbank to the sidewalk. In the process, she fell and injured her leg. Ms. Marchi sued the City for negligence. The City argued its decision to create the snowbanks was a policy decision that doesn’t give rise to a duty of care. The trial judge dismissed her claim, finding the City didn’t owe Ms. Marchi a duty of care. The British Columbia Court of Appeal disagreed. The Supreme Court of Canada upheld the Appeal Court’s decision:
Policy Decisions. The Court confirmed that government organizations are immune from suit in negligence for “true” or “core” policy decisions. “True” policy decisions consist of decisions as to a course of action that are based on economic, social, and political considerations. Without this immunity, “true” policy decisions – like, for example, a decision to close a hospital – could end up under the scrutiny of a civil suit and impede the normal functions of government.
Operational Decisions. Conversely, government organizations are not immune from liability in negligence for operational decisions. Operational decisions essentially reflect the implementation of policies. This potential liability protects persons if they are harmed by a government organization that acts negligently to implement its decisions.
The Distinction. Distinguishing between policy and operational decisions will frequently generate disputes between government actors and those injured while using or otherwise benefitting from the services they provide. The distinction between “true” policy and operational decisions is notoriously difficult to resolve. The Court advised that the fact the word “policy” is found in a written document, or that a plan is labelled as “policy”, might be misleading, and is certainly not determinative of whether a decision is a policy decision. Instead, four factors must be considered in assessing the true nature of a government organization’s decision:
- The level and responsibilities of the decision-maker. This factor requires consideration of the connection between the decision-maker whose conduct is at issue and the democratically elected official who bears the responsibility for a policy decision. Decisions far-removed from democratically elected officials are less likely to be policy decisions.
- The process by which the decision was made. This factor looks at whether the decision required deliberation, debate, and was intended to have broad application. If it did, it’s more likely to be a policy decision.
- The nature and extent of budgetary considerations. Decisions allotting budgets to departments or government agencies will be considered policy decisions. In contrast, day-to-day budgetary decisions of individual employees will be more operational in nature.
- The extent to which the decision was based on objective criteria. If the decision weighs competing interests and requires making value judgments, it is more likely to be a policy decision. Conversely, if a decision is based on considering technical standards or guides, it’s more likely to be operational in nature.
The City’s decision to create parking spots adjacent to snowbanks without direct sidewalk access was the issue. The Court found the City’s snow removal activities were operational in nature, and as result, the City owed a duty of care to Ms. Marchi. Additionally, the Court found that the trial judge placed far too much emphasis on the label of “policy”, unwritten practices, and gave too much weight to the issue of budgetary implications for the snow removal policy.
Please contact your McInnes Cooper lawyer or any member of our Municipal Law Team @ McInnes Cooper to discuss how we can help you mitigate your liability risk exposure.
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