You slipped on ice. Should you sue the City?
Under section 531 of Alberta’s Municipal Government Act, RSA 2000, c M-26, municipalities are not liable for injuries or damage caused by their snow clearing on roads or sidewalks unless they are “grossly negligent”. The process courts use to decide whether cities are negligent was recently discussed by the Supreme Court of Canada in Nelson (City) v Marchi, 2021 SCC 41.
Taryn Marchi serious injured her leg by falling through a snowbank on a cold January day in 2015. It snowed heavily for two days before that in Nelson, BC. The City cleared the parking spaces in the lot Ms. Marchi was using but left a continuous, albeit temporary, snowbank between the lot and the sidewalk. Ms. Marchi was trying to traverse it when she fell.
The Court acknowledged that governments are slightly different than private persons in the activities they undertake. At the level of elected officials and just below, they make value judgments and weigh different economic, social, and political considerations against each other. Those kinds of “core policy decisions” are very difficult for courts to review, and the separation of powers in Canada makes them inappropriate to review as well. Governments were and are immune from legal liability for damages caused by those decisions, as long as they are not irrational and not made in bad faith.
“Public bodies set priorities and balance competing interests with finite resources. They make difficult public policy choices that impact people differently and sometimes cause harm to private parties. This is an inevitable aspect of the business of governing. Accountability for that harm is found in the ballot box, not the courts.”
Most activities below the level of core policy decisions are not immune, but how can judges tell the difference? The Court listed four factors to consider:
- “The level and responsibilities of the decision-maker;”
- “The process by which the decision was made;”
- “The nature and extent of budgetary considerations;” and
- “The extent to which the decision was based on objective criteria.”
A decision is more likely to be an immune, core policy decision when it is made by someone closer in rank to an elected official; involves broad planning, debate, and consultation; involves allotting a budget rather than utilizing the budget; and involves making value judgements and balancing competing interests. Conversely, a decision is likely not a core policy decision when it is made by employees far removed from elected officials, is made merely under the discretion of individual or groups of employees in reaction to a particular event, involves day-to-day budgetary decisions, and can be assessed against technical standards or reasonableness.
“In ascertaining whether a decision is one of core policy, the key focus is always on the nature of the decision.”
Concerning the immediate case, none of the aspects of City’s decision to plow the parking lot matched the definition of a core policy decision. The nature of the decision was essentially a reaction by employees to the snowfall, who were acting under their own discretion without further deliberation, who used only day-to-day budgetary considerations, and which was easily assessable against a standard of reasonable conduct. Therefore, the City was not immune from damages for Ms. Marchi’s injuries, which the parties already agreed amounted to $1 million. Also, previous court cases already established the City had a duty of care to Ms. Marchi. The Court could not say, however, whether the City was negligent. The trial judge incorrectly assessed the City’s liability at every stage of the analysis. Therefore, the Court ordered a new trial.