Recently, the Supreme Court of Canada published a decision regarding whether a municipality can be immune from lawsuits for decisions made during the winter maintenance operations.

In Nelson (City) v Marchi, Ms. Marchi was injured while trying to cross a snowbank that had been created during the City’s winter maintenance operations. The operations’ steps were to first clear the snow from the , pushing all of it onto the curb, and to come back later to clear access points to the sidewalk. Between these two steps of the operations, Ms. Marchi parked her car in the cleared parking While crossing the snowbank, she was injured. She later sued the city of Nelson for her injuries.

The City’s position was that they were immune from lawsuits because their winter maintenance operations were “core policy decision”. The Supreme Court of Canada disagreed with the City and determined that the decisions on how to implement the winter maintenance policies were operational decisions, and therefore open to liability for negligence.

What is the difference between a core policy decision and an operational decision?

The definition of core policy decision was previously established by the court in R v Imperial Tobacco, at para 90 : “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors”.

In the present decision, the Supreme Court of Canada added that a core policy decision will have “characteristics of ‘planning’, ‘predetermining the boundaries’ or ‘budgetary allotments’ [. . .] will usually have a sustained period of deliberation, will be intended to have broad application, and will be prospective in nature” (para 55). Also, the core policy decision will often be established after a debate and input from various sources.

The Supreme Court determined that an operational decision will be one that will be “left to the discretion of individual employees or groups of employees”.

Why are government entities immune to lawsuits because of core policy decisions?

The main purpose of this immunity is to respect the separation of power and democracy. If anyone and everyone could sue the government for every decision they make, it would mean that the decisions of the Canadian population in their choice of government and the decisions of their elected government would be subject to the court’s rulings. It is not the place of the court to substitute its own decisions for those of an elected government. The courts have long held that the best way to hold governments and elected representatives accountable for their decisions was through the ballot box.

What about Ms. Marchi?

The city of Nelson argued before the Supreme Court that their snow clearance and removal policies were a core policy decision because it involved the allocation of scarce resources (para 74). The Supreme Court disagreed with the city’s analysis. The judges found that the trial judge had focused on snow removal in general, rather than narrowing their analysis to the contested decision regarding how snow was to be cleared from the streets.

Ms. Marchi’s claim is not about the priorities established in the policy, but the fact that they pushed the snow along the curb without ensuring a safe access to the sidewalks. The policies do not cover “the clearing of parking stalls and the creation of snowbanks was not mandated by any of the City’s documents; it was the operationalization or implementation of snow removal” (para 75).

The court held that clearing the parking stalls without creating safe access to the sidewalks was “not the result of a core policy decision immune from negligence liability” (para 80). It also found that the decisions of the supervisor for winter maintenance regarding the deployment of equipment and of employees throughout the city during the operation did not meet the criteria for a core policy decision (para 83).

After finding that the City is not immune from lawsuits, the next step is to determine if it has breached he standard of care. The Supreme court refused to rule on this issue and ordered a new trial.

We won’t know for a while whether Ms. Marchi’s claim will be successful. The important takeaway from this decision is that the Supreme Court has clarified the limits of a government entity’s immunity from lawsuits, and the types of situations where they could be held liable.

If you have sustained injuries because of accumulated snow and ice, it is important to know that you have 10 days to notify the City, or 60 days to notify the owner of a private property. Past this time, you may not be able to claim compensation.

If you have any questions about your injuries or those of a loved one, don’t hesitate to contact us for a free consultation with one of our lawyers.

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