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Case Comment. Policy vs Operational decisions: Municipal Liability for Snow Removal by George J. Hall

In the Court of Appeal for British Columbia’s first decision of 2020, the court has provided a reminder of the distinction between governmental policy and operational decisions – only the latter of which can attract civil liability.

The decision on appeal was Marchi v Nelson (City of), 2019 BCSC 308. The plaintiff’s claim was founded upon an allegation that the City was negligent when it cleared snow from city streets on January 4–5, 2015. The City work crews plowed the snow on Baker Street in a manner that created snowbanks or windrows along the sidewalk. At about 5 PM on January 6, the plaintiff 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. She fell forward and suffered serious injury to her leg.

One of the issues on appeal was the finding by Justice McEwen that the City of Nelson did not owe a duty of care to the plaintiff because the decisions made respecting plowing and removal of snow and snowbanks on Baker Street were bona fide policy decisions. Justice Willcock delivered the decision for the Court of Appeal and began by reciting jurisprudence detailing the difference between policy and operational decisions:

[14] As the Supreme Court of Canada noted in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228 (per Cory J., for the majority at 1239):
The functions of government and government agencies have multiplied enormously in this century. Often government agencies were and continue to be the best suited entities and indeed the only organizations which could protect the public in the diverse and difficult situations arising in so many fields. They may encompass such matters as the manufacture and distribution of food and drug products, energy production, environmental protection, transportation and tourism, fire prevention and building developments. The increasing complexities of life involve agencies of government in almost every aspect of daily living. Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of “policy”. Thus the dilemma giving rise to the continuing judicial struggle to differentiate between “policy” and “operation”. Particularly difficult decisions will arise in situations where governmental inspections may be expected. The dividing line between “policy” and “operation” is difficult to fix, yet it is essential that it be done.
[Emphasis added.]

[15] Cory J., at 1241, drew some assistance from the following passage from the judgment of Mason J. in the High Court of Australia decision, Sutherland Shire Council v. Heyman (1985), 1988 ABCA 234

(CanLII), 60 A.L.R. 1 at 34–35, in identifying the criteria to which reference may be made in drawing the critical distinction:

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. [Emphasis added by Cory J.]

[16] 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.

Justice Willcock concluded that it was an error for the trial judge to find that the City’s decisions were that of policy without engaging in the analysis called for in Just v. British Columbia. In obiter, it was noted that the decisions of the street cleaning crew may properly have been characterized as operational in nature. These potentially operational decisions included: not to extend the hours of snow clearing; not to move snow into particular parking spots; and leaving access to the sidewalk open in other areas along the street.

The complete decision can be found at:
https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca1/2020bcca1.html

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