Dear Colleagues;
I couldn’t help but respond when a “breach of statutory duty” (BSD) reference came up! To respond to Stéphane first, it would not require a revival of the BSD tort in Canada for the courts to consider the
interaction of common law rules with statutes in determining a duty of care. That has been done on many occasions in Canada and elsewhere without directly requiring consideration of the separate BSD tort.
(For those who are interested, I had the gall to suggest a few years ago that the Supreme Court of Canada had made a mistake in the
Saskatchewan Wheat Pool case by abolishing the BSD tort. You can read my reasons in the article linked here
http://www.austlii.edu.au.ezproxy.newcastle.edu.au/cgi-bin/viewdoc/au/journals/SydLawRw/2011/3.html from p 82. But even without a BSD tort it seems sensible for a court to consider the interaction of a common law rule of liability with legislation in the
same area.)
Perhaps contrary to Jason, I think the
Marchi decision is a sensible one. Like it or not, the common law allows government bodies to have a duty of care to members of the public, and since it does there need to be some rules allowing courts to distinguish between “policy” and “operational”
decisions. The guidelines set out here seem reasonable. In fact, even if one took the view that the local council could not be sued for
failing to sweep up snow, one could argue that in this case they had actually done something positive (stack up the snow from the parking area onto the footpath) and hence created a risk which was not previously present. But either way the decision
seems reasonable given we are allowing government to be sued.
Compare (in my view) the decision recently argued on appeal in Australia (and noted before on this list) of Bromberg J in
Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021) that the federal
environment minister owed a duty of care to the children of Australia not to approve a coal mine development. There is a case where the guidelines for “policy” set out here in
Marchi are, I think, more than satisfied. I am pretty sure that this decision will be overturned on appeal.
Colleagues may also have noticed the decision of the New Zealand Court of Appeal in
Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552 [21 October 2021]. The case is not on the same grounds as the
Sharma case in Australia- it involved a claim against 7 private companies who contributed to global climate change, not against the government. But the sort of "policy" matters discussed by the court are similar to those considered in the Sharma litigation
and the court held that there was no duty of care in negligence, or any other tort action.
Regards
Neil
NEIL FOSTER
Associate Professor, Newcastle Law School
College of Human and Social Futures
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
Top 200 University in the world by QS World University Rankings 2021
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resides and pay my respect to Elders past, present and emerging.
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CRICOS Provider 00109J
From:
Stéphane Sérafin <Stephane.Serafin@uottawa.ca>
Date: Friday, 22 October 2021 at 4:29 am
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>, "jneyers@uwo.ca" <jneyers@uwo.ca>, "echambe@uwo.ca" <echambe@uwo.ca>, "obligations@uwo.ca" <obligations@uwo.ca>
Subject: RE: Supreme Court of Canada on policy/operational decisions
I suppose that depends on whether we want to reconsider the place of breach of statutory duty in Canadian law…
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|
Stéphane Sérafin Professeur adjoint | Assistant Professor Faculté de droit, Section de common law
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Faculty of Law, Common Law Section |
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: October 21, 2021 1:16 PM
To: 'Jason W Neyers' <jneyers@uwo.ca>; Erika Chamberlain <echambe@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Supreme Court of Canada on policy/operational decisions
Attention : courriel externe | external email
Setting aside the fact that, as Jason suggests, we clearly don’t owe private duties to one another to clear snow from public footpaths, does some special common law duty not cut across any legislative scheme imposed on
public authorities to maintain highways etc. (for example in England s.40 and s.58 Highways Act 1980)?
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender.
From: Jason W Neyers <jneyers@uwo.ca>
Sent: 21 October 2021 17:58
To: Erika Chamberlain <echambe@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Supreme Court of Canada on policy/operational decisions
I guess those of us hoping for a return to orthodoxy and a Diceyean revolution are out of luck.
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Erika Chamberlain <echambe@uwo.ca>
Sent: October 21, 2021 11:12 AM
To: obligations <obligations@uwo.ca>
Subject: Supreme Court of Canada on policy/operational decisions
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
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