Supreme Court of Canada to consider dichotomy between policy and operational decisions in negligence claims

August 24, 2020 | Nico McKay, Christie A. McLeod

The Supreme Court of Canada has recently granted leave to appeal the decision of the B.C. Court of Appeal in Marchi v Nelson (City of), 2020 BCCA 1.  The key question on appeal is whether certain acts or omissions on the part of the City of Nelson (the “City”) should be considered policy decisions and thus ought to be insulated from judicial scrutiny.

Factual Background

This action is a negligence claim arising out of an injury sustained by the Respondent, Ms. Marchi.  Following a heavy snowfall in January of 2015, the City cleared snow on the downtown streets in a manner that created snowbanks along the street’s curb and onto the sidewalk.  Ms. Marchi parked her car on the side of the street and encountered a snowbank between her vehicle and the sidewalk.  As Ms. Marchi attempted to cross the snowbank, her right foot fell through and she injured her leg.  She was taken by ambulance to a nearby hospital.

Ms. Marchi sued the City for negligence, arguing that it should have constructed openings in the snowbanks to allow safe access from the street onto the sidewalk.

British Columbia Supreme Court Decision

At the BC Supreme Court, Justice McEwan held that the City’s snow-clearing actions resulted from policy decisions governed by social and economic factors, including the availability of manual labour and equipment.  As public authorities can only be held liable in negligence for policy decisions made in bad faith or by an improper exercise in discretion, Justice McEwan found that the City did not owe a duty of care in the matter at hand.

Alternatively, Justice McEwan held that if the City did not have a policy defence and thus owed a duty of care towards Ms. Marchi, the City’s policy was rational and reasonable, and Ms. Marchi had assumed the risk of stepping on the snowbank.

Concluding that the City’s decisions were immune from liability, Justice McEwan dismissed the action.

British Columbia Court of Appeal Decision

The BC Court of Appeal overturned the Supreme Court’s decision, holding that Justice McEwan failed to “identify the types of governmental decisions that should be insulated from judicial scrutiny.”

In a unanimous decision, Justice Willcock found that the trial court erred in accepting that all of the City’s decisions regarding snow-clearing were policy decisions, and stated that certain actions taken by the City may have been properly characterized as operational.  The Court relied on the Supreme Court of Canada’s reasoning in Just v British Columbia, [1989] 2 S.C.R. 1228, where Justice Cory stated at paragraphs 16 and 17 that:

…complete Crown immunity should not be restored by having every government decision designated as one of “policy”. Thus the dilemma giving rise to the continuing judicial struggle to differentiate between “policy” and “operation”.

The dividing line between “policy” and “operation” is difficult to fix, yet it is essential that it be done.

Justice Willcock also disagreed with the Supreme Court’s findings that the City was not at fault due to its rational policy and that Ms. Marchi was an “author of her own misfortune.”  Ultimately Justice Willcock held that it was not open to the trial judge to treat his finding that Ms. Marchi assumed the risk of crossing the snowbank as dispositive of the question of the City’s negligence.

The Court allowed the appeal, set aside the order dismissing Ms. Marchi’s action, and ordered a new trial.

Leave to Appeal to the Supreme Court of Canada

On August 20, 2020 the City was granted leave to appeal to the Supreme Court of Canada where the issue of governmental insulation from judicial scrutiny in negligence claims will again be re-considered. The success of the Appellant’s leave application indicates that the Supreme Court of Canada may seek to clarify the division between policy and operational decisions in negligence claims, and may reconsider the scope and nature of the existing dichotomy.  Public policy makers should be aware that the outcome of the Supreme Court of Canada’s decision may expand the scope of the duty of care owed by public authorities in negligence claims, and that such an outcome may significantly alter their liability exposure.


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