Supreme Court provides a clear path forward for municipalities’ liability in negligence

By Noémie Ducret
novembre 29, 2021

In Nelson (City) v Marchi, the Supreme Court of Canada clarified the legal framework surrounding “core policy decisions”, which render a government or public authority immune from liability in negligence.1  

Municipalities often rely on the core-policy defence to shield themselves from liability in negligence. The defence is based on the understanding that core-policy government decisions made by democratically elected officials, or their associates, should remain free from judicial supervision, to protect the independence of the legislative branch and the separation of powers.  

However, the law of negligence applies to municipalities with regards to operational decisions made by them. Operational decisions have been defined by the courts as the practical implementation of policies, generally “made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”2 

In Nelson, the City of Nelson in British Columbia plowed the snow on top of angled parking stalls on downtown streets, creating a continuous snowbank along the curb that separated the parking stalls from the sidewalks. City employees did not clear an access route to the sidewalk for drivers parking in the stall. The Plaintiff, Ms. Marchi, was injured while attempting to cross a snowbank between her parking stall and the sidewalk. The trial judge held that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions. The Court of Appeal of British Columbia overturned the decision of the trial judge and ordered a new trial.3  

The Supreme Court set out four factors to consider when determining if an impugned decision of a public body should benefit from core policy immunity:  

  1. The level and responsibilities of the decision-maker. What is relevant to this analysis is how closely related the decision-maker is to a democratically-accountable official who bears responsibility for public policy decisions;4 
  1. The process by which the decision was made. The more the process for reaching the decision was deliberative, required debate, involved input from different levels of authority, and was intended to have broad application and be prospective in nature, the more it will point to a core policy decision;5 
  1. The nature and extent of budgetary considerations. Budgetary government decisions will be more likely to fall within the competencies of the legislative and executive branches;6 and 
  1. The extent to which the decision was based on objective criteria. The more a government decision weighs competing interests and requires making value judgments, the less the courts should substitute its own value judgment.7 

In assessing these factors, the Supreme Court held that the focus should always be on the underlying purpose of the immunity and the nature of the decision. In the case of Nelson, the Supreme Court held that the City’s had not shown that the way it plowed the parking stalls was the result of a proactive, deliberative decision, based on value judgments.8 

The main takeaway from the Supreme Court’s decision in Nelson is that the only decisions of local governments which will be shielded by the policy immunity defence are those based on public policy considerations that reflect the independence of the legislative branch and the separation of powers. The four factors listed by the Supreme Court therefore place a heavy burden on municipalities to show that their decisions should attract immunity. 


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