Nelson (City) v. Marchi, 2020 BCCA 12021 SCC 41 (39108)

“After a heavy snowfall, the city started plowing and sanding streets pursuant to its written snow clearing and removal policies and unwritten practices. Among the tasks completed by city employees was the clearing of snow in angled parking stalls on streets located in the downtown core. Employees plowed the snow to the top of the parking spaces, creating a continuous snowbank along the curb that separated the parking stalls from the sidewalk. They did not clear an access route to the sidewalk for drivers parking in the stalls. M parked in one of the angled parking stalls. She was attempting to access a business, but the snowbank created by the city blocked her route to the sidewalk. She decided to cross the snowbank and seriously injured her leg. M sued the city for negligence. The trial judge dismissed M’s claim concluding that the city did not owe M a duty of care because its snow removal decisions were core policy decisions. In the alternative, he also found that there was no breach of the standard of care and that in the further alternative, if there was a breach, M was the proximate cause of her own injuries. The Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial.”

The SCC (7:0) dismissed the appeal.

Justices Karakatsanis and Martin wrote as follows (at paras. 1-5, 36, 55-56, 61-68, 103):

“Under Canadian tort law, there is no doubt that governments may sometimes be held liable for damage caused by their negligence in the same way as private defendants. At the same time, the law of negligence must account for the unique role of public authorities in governing society in the public interest. 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. Courts are not institutionally designed to review polycentric government decisions, and public bodies must be shielded to some extent from the chilling effect of the threat of private lawsuits.

Accordingly, courts have recognized that a sphere of government decision-making should remain free from judicial supervision based on the standard of care in negligence. Defining the scope of this immunity has challenged courts for decades. In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, this Court explained that “core policy” government decisions — defined as “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors” — must be shielded from liability in negligence (para. 90). In ascertaining whether a decision is one of core policy, the key focus is always on the nature of the decision.

In the decade since Imperial Tobacco, there has been continued confusion on when core policy immunity applies. This appeal requires the Court to clarify how to distinguish immune policy decisions from government activities that attract liability for negligence. We conclude that the rationale for core policy immunity serves as an overarching guiding principle. Core policy decisions are immune from negligence liability because each branch of government has a core institutional role and competency that must be protected from interference by the other branches. We identify four factors from this Court’s jurisprudence that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. The separation of powers rationale animating the immunity guides how the factors weigh in the analysis.

The respondent, Taryn Joy Marchi, was injured while attempting to cross a snowbank created by the appellant, the City of Nelson, British Columbia. She sued the City for negligence. Dismissing her claim, the trial judge concluded that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions. In the alternative, he also found that there was no breach of the standard of care and, if there was a breach, Ms. Marchi was the proximate cause of her own injuries. The Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial.

We agree with the Court of Appeal that the trial judge erred on all three conclusions. On duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City therefore owed Ms. Marchi a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, this Court is not well placed to determine the standard of care and causation issues. We would therefore dismiss the appeal and order a new trial in accordance with these reasons.

For the purposes of this case, we need not decide whether core policy immunity is best conceived of as a rule for how the Just category operates, or whether it should be viewed as a stage two consideration under the Anns/Cooper framework even when an established category of duty applies. It makes no practical difference to the outcome of the appeal. Regardless of where core policy immunity is located in the duty of care framework, the same principles apply in determining whether an immune policy decision is at issue. Those principles apply in any case in which a public authority defendant raises core policy immunity, whether the case involves a novel duty of care, falls within the Just category, or falls within another established or analogous category. What is most important is that immunity for core policy decisions made by government defendants is well understood and fully explored where the nature of the claim calls for it. It is for this reason that we will now articulate the principles underlying the immunity.


The characteristics of “planning”, “predetermining the boundaries” or “budgetary allotments” accord with the underlying notion that core policy decisions will usually have a sustained period of deliberation, will be intended to have broad application, and will be prospective in nature. For example, core policy decisions will often be formulated after debate — sometimes in a public forum — and input from different levels of authority. Government activities that attract liability in negligence, on the other hand, are generally left to the discretion of individual employees or groups of employees. They do not have a sustained period of deliberation, but reflect the exercise of an agent or group of agents’ judgment or reaction to a particular event (see H. J. Krent, “Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability in Tort” (1991), 38 U.C.L.A. L. Rev. 871, at pp. 898-99).

Thus, four factors emerge from this Court’s jurisprudence that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria.


The rationale for core policy immunity should also serve as an overarching guiding principle for how to assess and weigh the factors this Court has developed for identifying core policy decisions. We will elaborate.

First: the level and responsibilities of the decision-maker. With this factor, what is relevant is how closely related the decision-maker is to a democratically-accountable official who bears responsibility for public policy decisions. The higher the level of the decision-maker within the executive hierarchy, or the closer the decision-maker is to an elected official, the higher the possibility that judicial review for negligence will raise separation of powers concerns or have a chilling effect on good governance. Similarly, the more the job responsibilities of the decision-maker include the assessment and balancing of public policy considerations, the more likely this factor will lean toward core policy immunity. Conversely, decisions made by employees who are far-removed from democratically accountable officials or who are charged with implementation are less likely to be core policy and more likely to attract liability under regular private law negligence principles (Just, at pp. 1242 and 1245; Imperial Tobacco, at para. 87).

Second: the process by which the decision was made. The more the process for reaching the government decision was deliberative, required debate (possibly in a public forum), involved input from different levels of authority, and was intended to have broad application and be prospective in nature, the more it will engage the separation of powers rationale and point to a core policy decision. On the other hand, the more a decision can be characterized as a reaction of an employee or groups of employees to a particular event, reflecting their discretion and with no sustained period of deliberation, the more likely it will be reviewable for negligence.

Third: the nature and extent of budgetary considerations. A budgetary decision may be core policy depending on the type of budgetary decision it is. Government decisions “concerning budgetary allotments for departments or government agencies will be classified as policy decisions” because they are more likely to fall within the core competencies of the legislative and executive branches (see, e.g., Criminal Lawyers’ Association, at para. 28). On the other hand, the day‑to‑day budgetary decisions of individual employees will likely not raise separation of powers concerns.

Fourth: 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 more likely separation of powers will be engaged because the court would be substituting its own value judgment (Makuch, at pp. 234-36 and 238). Conversely, the more a decision is based on “technical standards or general standards of reasonableness”, the more likely it can be reviewed for negligence. Those decisions might also have analogues in the private sphere that courts are already used to assessing because they are based on objective criteria.

Thus, in the course of weighing these factors, the key focus must always be on the underlying purpose of the immunity and the nature of the decision. None of the factors is necessarily determinative alone and more factors and hallmarks of core policy decisions may be developed; courts must assess all the circumstances.

To summarize, core policy decisions are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith” (Imperial Tobacco, at para. 90). They are a “narrow subset of discretionary decisions” — meaning, the presence of choice is not a marker of core policy (ibid., at paras. 84 and 88). Core policy decisions are immune from negligence liability because the legislative and executive branches have core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight. A court must consider the extent to which a government decision was based on public policy considerations and the extent to which the considerations impact the rationale for core policy immunity.

In addition, four factors emerge that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. The underlying rationale — protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers — serves as an overarching guiding principle for how to weigh the factors in the analysis. Thus, the nature of the decision along with the hallmarks and factors that inform its nature must be assessed in light of the purpose animating core policy immunity.

For these reasons, the trial judgment must be set aside. On duty of care, we would conclude that the impugned City decision was not a core policy decision and the City therefore owed Ms. Marchi a duty of care. The standard of care and causation assessments require a new trial. We would therefore dismiss the appeal with costs throughout.”