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Policy vs Operational: the debate continues

8 minute read

The Supreme Court of Canada has granted leave to an appeal that will once again require the Court to address the distinction in the law of negligence between policy and operational decisions made by a public authority. Although the case emanates from British Columbia, the decision will be of significance in Ontario not just to municipalities (the case arises out of municipal road maintenance activities), but also to those involved in negligence claims against the Province.

For municipalities, the case raises the issue of when decisions about municipal winter maintenance constitute core policy matters, and are thus insulated from judicial scrutiny. In other words, when are decisions which, by their nature, balance resources and cost with the practical reality of living in a northern climate immune from liability?

With respect to the Province, the interpretation and effect of the year-old Crown Liability and Proceedings Act, 2019 remains a live issue in Ontario courts.[1] At least one judge has held that the purpose of the Act was to “codify the scope of the intrusion on Crown liability that maintained or continued a government’s or a public authority’s immunity from causes of action respecting certain governmental functions.”[2] If this interpretation of the Act is ultimately confirmed by the Ontario Court of Appeal or the Supreme Court of Canada, then the Court’s decision in Marchi v. Nelson (City of) will impact not just the development of the common law of negligence, but also the evolving area of crown liability for negligence in Ontario.

Marchi v. Nelson (City of), 2020 BCCA 1

The British Columbia Court of Appeal heard Taryn Marchi’s appeal from a March 2019 order of the Supreme Court of British Columbia dismissing her action against the respondent municipality for damages arising from a fall in January 2015.

Marchi brought a claim against the City of Nelson arising from a serious injury which she sustained when she fell in a snowbank on Baker Street. She claimed that the City created a hazard when it cleared snow on its streets following a heavy snowfall overnight on January 4-5, 2015. City work crews plowed the snow on the 300 block of Baker Street early in the morning on January 5 in such a way that they created snowbanks or windrows at the edge of the street along the sidewalk. On the afternoon of January 6, the appellant parked in an angled spot on the street and, seeing no other means of getting onto the sidewalk, tried to cross the snowbank. As she did so, her right foot dropped through the snowbank and onto something that bent her forefoot up. The snow locked her leg in place and she fell forward, suffering serious injury to her leg.

Marchi argued that the City should have left openings in the snowbanks to permit safe access from the street onto the sidewalk. She relied upon evidence of the practices in neighbouring municipalities to establish that there were reasonable and preferable ways to clear the streets so as to ensure safe access to the sidewalks.

The trial judge accepted the City’s argument that it owed no duty of care to Marchi because its decisions with respect to snow removal were bona fide policy decisions. He alternatively found that if the decisions were operational in nature, negligence was not made out under the standard tort analysis, in part because Marchi was the “author of her own misfortune”.

Marchi appealed the dismissal of her action, submitting that the trial judge made a number of factual and legal errors. She argued that the trial judge erred:

  • in holding that all witnesses who testified about the practices and standard of care were called by her when that was not the case;
  • in finding that the practice employed in a comparable community was irrelevant based on a misapprehension of the circumstances in that community; and
  • in finding the City had exceeded its snow clearing budget in the three years before the incident when that was not the case.

She asserted that the trial judge erred by providing functionally insufficient reasons for judgment, and by misstating and failing to consider her argument at trial or the jurisprudence to which she referred. Marchi argued that he further erred by failing to distinguish between policy and operational decisions, and failing to consider and establish an appropriate standard of care. Finally, she argued that the trial judge erred in finding that she was the author of her own misfortune and failing to properly address her negligence as contributory rather than a complete defence.

The British Columbia Court of Appeal held that the trial judge erred in the manner in which he addressed the City’s duty of care, the standard of care, and the appellant’s own negligence.

Writing for the three-judge panel, Justice Willcock found that the trial judge mischaracterized the law when he stated that governments “do not owe a duty of care in tort if it can be established that their actions are bona fide. In Willcock J.A.’s view, the trial judge adopted the submission of the City but abridged it in a manner that omits the crucial reference to the insulation of policy decisions, in particular, from judicial scrutiny. His reasons failed to identify the types of governmental decisions that should be insulated from judicial scrutiny. It was an error to simply accept the City’s submissions that all decisions made with respect to snow removal, whether made by the City Council, the Works Superintendent or the street crews, were policy decisions.

Justice Willcock noted that the distinction between governmental policy and operational decisions is a subtle one. The trial judge failed to engage in the analysis called for by the Supreme Court of Canada in Just v. British Columbia, [1989] 2 S.C.R. 1228, in which Cory J. held that “[t]he dividing line between ‘policy’ and ‘operation’ is difficult to fix, yet it is essential that it be done.” Cory J. concluded:

The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at a high level.

In Justice Willcock’s view, certain of the impugned decisions of the street clearing crew may properly have been characterized as operational in nature. Arguably, the decision not to further extend the hours of snow clearing and the decision not to move snow into particular parking spots, leaving access to the sidewalk open in other areas along the street, were operational.

Moreover, Willcock J.A. found that the trial judge’s “standard tort analysis” was coloured by his view that a policy defence was available to the City and that rationality, rather than reasonableness, was the applicable standard.

Justice Willcock held that the trial judge further erred in characterizing the appellant’s conduct as the proximate cause of her injury, contrary to the approach embodied in section 8 of the Negligence Act, R.S.B.C. 1996, c. 333, which provides:

This Act applies to all cases where damage is caused or contributed to by the act of a person even if another person had the opportunity of avoiding the consequences of that act and negligently or carelessly failed to do so.

The trial judge did not appropriately consider and identify the acts or omissions on the part of the City that should have been subject to judicial scrutiny and he did not correctly apply the “standard tort analysis” in relation to any such acts or omissions.

Given these findings, the court did not address misapprehensions of the evidence or the purported inadequacy of the reasons for judgment. It allowed the appeal and ordered a new trial.

The Supreme Court of Canada has previously articulated that while it is necessary to protect from liability certain decisions made by government, the extent of this immunity should be kept narrow as a return to complete crown immunity in the area of negligence would be “intolerable” given the extent to which the acts and decisions of government are integrated into our daily lives. On the other hand, there are clearly matters about which municipalities must make decisions that inherently involve the balancing of competing interests, even though on their face they might appear to be operational. Whether and how to expend additional public resources to remove snow from streets and sidewalks may very well be one of those decisions. There will no doubt be many waiting anxiously to hear from the Court and receive further guidance on this issue.

[1] See https://www.lerners.ca/lernx/court-considers-scope-and-constitutionality-of-provisions-of-the-crown-liability-and-proceedings-act-in-class-action-part-2/

[2] Francis v. Ontario, 2020 ONSC

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