Government Immunity for Core Policy Decisions

Nelson (City) v. Marchi, 2021 SCC 41

Written by: Tanner J. Kovacs

Pursuant to common law (Judge-made) legal principles, public bodies are shielded from liability in negligence when making core government policy decisions.

Although seemingly straightforward, the above proposition is one upon which “much judicial ink has been spilled” and “courts have found it notoriously difficult to decide whether a particular government decision falls on the policy or operational side of the line”.

Given the above, the Supreme Court of Canada in its 2021 decision, Nelson (City) v. Marchi, 2021 SCC 41 (“Marchi”), attempted to provide clarity as relates to what constitutes a core policy decision.

In Marchi, the employees of the Defendant (Appellant), the City of Nelson, cleared the snow in angled parking stalls located on streets in the downtown core. In doing so, the employees created a continuous snowbank along the curb that separated the parking stalls from the sidewalk.

The Plaintiff (Respondent), Ms. Marchi, parked in one of the parking stalls, however, the snowbank blocked her route to the sidewalk. Nonetheless, Ms. Marchi attempted to cross the snowbank, which resulted in a serious injury to her leg. As a result, Ms. Marchi sued the City of Nelson for negligence.

In rendering its decision, the Court set out four factors that “help in assessing” whether a decision is one of core policy and, thus, sheltered from liability in negligence, namely:

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 Court determined that the City of Nelson’s decision as relates to the manner in which the parking stalls were cleared “bore none of the hallmarks of core policy” and the Appeal was dismissed citing the following:

 1.       The City of Nelson’s public works supervisor did not have the authority to make a different decision with respect to the clearing of the parking stalls; 

2.       There was no suggestion that the decision as relates to the method of plowing resulted from deliberation involving the balancing of any competing objectives and policy goals by the supervisor or her superiors; 

3.       There was no evidence suggesting that an assessment was made pertaining to the feasibility of clearing pathways in the snowbanks; 

4.       No high level budgetary considerations were involved in the City of Nelson’s decision with respect to the clearing of the parking stalls; and 

5.       The chosen method of plowing the parking stalls could be easily assessed based on objective criteria. 

Given the Court’s decision in Marchi, decision-makers are more likely to be immune from liability in negligence when:

1.       They are “closely related to a democratically accountable official” and have job responsibilities that include “the assessment and balancing of public policy considerations”; 

2.       Their decisions are made through a process which is deliberative, requires debate, involves input from different levels of authority, and is intended to have broad application and be prospective in nature; 

3.       Their decisions concern “budgetary allotments for departments or government agencies”; and 

4.       Their decisions involve weighing competing interests and making value judgments.

 Notwithstanding that a decision may be one of core policy, public bodies may be held liable for a negligent operational implementation of the same.

Should you have any questions pertaining to the immunity afforded to public bodies when making core policy decisions, please do not hesitate to contact Sandeep K. Dhir, Q.C., Partner & Litigation Team Lead, or Tanner J. Kovacs, Associate, at SB LLP.

 *Disclaimer: This article is not intended to provide legal advice and is for information purposes only.