I guess those of us hoping for a return to orthodoxy and a Diceyean revolution are out of luck.

 

 

 

Hi all,

 

The Supreme Court of Canada released its decision today in Nelson (City) v Marchi: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19036/index.do.

 

The claim arose after the plaintiff injured her leg when trying to cross a snowbank on a city street. There had been a heavy snowfall, and the city had cleared the snow from the angled parking spots on the street, but had not ploughed paths for pedestrians to cross over from their cars to the sidewalks.

 

The trial judge found that this was a policy decision that was immune from liability. The BC Court of Appeal reversed this decision, and a unanimous Supreme Court of Canada upheld the Court of Appeal’s decision and ordered a new trial.

 

The decision covers well-worn territory on policy and operational decisions, and it is unclear why they granted leave here (especially when the court hears so few torts cases). The court found that this was not a novel duty of care, and fell within the category established in Just v British Columbia.

 

The court set out the following framework for distinguishing policy and operational decisions:

• Level and responsibilities of the decision-maker (noting especially their closeness to a democratically elected individual)
• The process by which the decision was made (eg, whether it involved deliberation and debate)
• The nature and extent of budgetary considerations, keeping in mind that all government decisions involve some questions of budget allocation
• The extent to which the decision was based on objective criteria, and thus can be subjected to a test of reasonableness

 

The court also stressed that the words “policy” in a government document are not determinative of whether it is a core policy decision from a legal perspective.

 

Based on these factors, the court concluded on the facts (at paras 83-84):

On this record, the City’s decision bore none of the hallmarks of core policy. Although the extent to which the supervisor was closely connected to a democratically-elected official is unclear from the record, she disclosed that she did not have the authority to make a different decision with respect to the clearing of parking stalls (the first factor). In addition, there is no suggestion that the method of plowing the parking stalls on Baker Street resulted from a deliberative decision involving any prospective balancing of competing objectives and policy goals by the supervisor or her superiors. Indeed, there was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks; the City’s evidence is that this was a matter of custom (the second factor). Although it is clear that budgetary considerations were involved, these were not high-level budgetary considerations but rather the day-to-day budgetary considerations of individual employees (the third factor).

 Finally, the City’s chosen method of plowing the parking stalls can easily be assessed based on objective criteria (the fourth factor).

Several ODG’ers are cited in the decision. Perhaps most notable is that this was a unanimous decision (written by Justices Karakatsanis and Martin), which runs counter to a string of split decisions in torts cases at the Supreme Court.

 

Cheers,

Erika

 

Erika Chamberlain, LL.B., Ph.D. (Cantab.)

Professor and Dean

Faculty of Law, Western University

London, ON, Canada, N6A 3K7

echambe@uwo.ca, (519) 661.2111 x.80036