October 29, 2021
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 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.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2021. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
Nov 13, 2024
Social host liability for injury to a third party – and coverage of social host liability claims – isn’t straightforward. Social host…
Sep 5, 2024
The 2024 decision of the Supreme Court of Newfoundland and Labrador – General Division in Interprint Systems Limited et al. v. Co-operators…
Jun 26, 2024
An increasing number of municipalities in Canada are using public video camera surveillance to promote public safety and help deter crimes like…
May 17, 2024
Do cultural practices play a role in the assessment of damages for wrongful death claims? There is British Columbia precedent for awarding…
Jan 9, 2024
In a decision that will be helpful in future assessments of damages for soft tissue injuries, on December 21, 2023, the Nova Scotia Court of…
Nov 14, 2023
In its October 19, 2023 decision in Roach v. Nordic Ins. Co. of Canada, the Nova Scotia Supreme Court confirmed that Workers’ Compensation…
Oct 4, 2023
Insureds aren't automatically entitled to a defence from their insurers. Liability policies generally provide two types of coverage: coverage…
Jun 12, 2023
The Nova Scotia Supreme Court has added a new, lower range for general damages in sexual abuse civil cases. Damages in sex abuse cases are…
Mar 30, 2023
The Alberta Court of Appeal recently sent a strong message to insureds: utmost good faith is not only key but is required in insurance claims.…
Dec 13, 2022
The insurer’s duty to defend a claim made against its insured is inextricably tied to coverage: there can be no duty to defend without a…
Apr 18, 2022
On March 28, 2022, the Supreme Court of Newfoundland and Labrador (General Division) decided that in a personal injury case, quantification of…
Mar 29, 2022
The Supreme Court of Canada’s recent consideration of estoppel and waiver in the context of a fatal injury case in Trial Lawyers Association…
Mar 4, 2022
On December 17, 2021, New Brunswick’s Local Governance Reform Act (Bill 82) amending the N.B. Local Governance Act (and other related acts and…
Nov 23, 2021
On November 19, 2021, in Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, the Supreme…
Sep 23, 2021
On September 9, 2021, the Nova Scotia Court of Appeal released its decision in Aviva Insurance v. PK Construction Ltd. Dealing with Nova…
Jun 11, 2020
New types of claims will emerge while insurers may see an evolution or even decrease in the traditional types. Here are the types of claims and…
Apr 17, 2020
The global and domestic spread of COVID-19 has forced Canadians to reassess their upcoming travel plans – and insurers to assess their travel…
Feb 14, 2020
NOTE: On July 23, 2021, the Supreme Court of Canada agreed with the Newfoundland & Labrador Court of Appeal’s decision respecting the law,…
Jan 14, 2020
On December 23, 2019, the Newfoundland and Labrador Court of Appeal effectively eliminated the category of “knowledgeable fact witness” in…
Nov 22, 2019
On November 20, 2019, the Nova Scotia Court of Appeal confirmed pursuant to section 113BA(1) of Nova Scotia’s Insurance Act, in the context of…
Jan 21, 2019
On January 18, 2019, the Nova Scotia Court of Appeal rendered its unanimous (5-0) decision in Holland v. Sparks, overturning a motion decision…
Oct 25, 2018
NOTE: On November 20, 2019, the Nova Scotia Court of Appeal upheld the trial court’s decision and confirmed pursuant to section 113BA(1) of…
May 11, 2018
On May 8, 2018, for the first time, the Nova Scotia Supreme Court has ruled on the deductibility of Workers’ Compensation Board Extended…
Jan 25, 2018
Insurers have generally been leery of coverage for medical cannabis in both the health benefit claims and in cost of care claims in the personal…
Jul 10, 2017
The legal landscape of cannabis (a.k.a. marihuana, weed, pot …) is changing, both reflecting - and contributing to - more relaxed attitudes…
Jun 5, 2017
On June 2, 2017, the Supreme Court of Canada decided that where a plaintiff advances a claim for negligently caused psychological or psychiatric…
May 3, 2017
On May 2, 2017, the N.S. Court of Appeal decided another case involving the deductibility of CPP disability benefits – but this time, in the…
Apr 20, 2017
On April 13, 2017, Canada’s federal government introduced legislation that, if passed into law, will legalize recreational cannabis in Canada.…
Jan 30, 2017
On January 27, 2017, the Supreme Court of Canada decided in Sabean v. Portage La Prairie Mutual Insurance Co. that future CPP disability…
Jan 25, 2017
Doing business with the public sector creates an often overlooked – but very real – risk that the confidential information a business…
Sep 12, 2016
On September 9, 2016, the Supreme Court of Canada decided in Musqueam Indian Band v. Musqueam Indian Band (Board of Review) that an Indian band…
Aug 17, 2016
The Newfoundland and Labrador Court of Appeal recently affirmed the test for confirming a cause of action and thus resetting a limitation period…
Jul 5, 2016
The Ontario Court of Appeal has re-ignited the discussion about when a municipality will be held liable for its shoddy bylaw enforcement…
Jun 20, 2016
Real estate vendors and purchasers have high expectations of their realtors – and they don’t often hesitate to pursue legal action against…
Jun 17, 2016
In its June 16, 2016 decision in Rogers Communications Inc. v. Châteauguay (City), the Supreme Court of Canada decided a municipality’s…
May 10, 2016
On May 6, 2016, the Supreme Court of Canada generally affirmed the common law rule that positive covenants do not run with the land. More…
Apr 15, 2016
On April 14, 2016, Canada’s federal Justice Minister proposed legislation setting out the conditions that a person wishing to undergo…
Mar 24, 2016
When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…
Jan 27, 2016
On January 21, 2016, the Ontario Superior Court of Justice dramatically expanded the scope of legal privacy protection – and the liability…
Apr 15, 2015
On April 15, 2015 the Supreme Court of Canada decided the City of Saguenay’s recitation of a religious - though non-denominational – prayer…
Feb 9, 2015
NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo…
May 2, 2014
April showers bring … flood and sewage back-up claims. Flooding and sewage back-up can result in significant damage for municipal ratepayers,…
Subscribe to McInnes Cooper to stay current with our leading insights on legal updates, trends, news, events, and services.