February 13, 2022

By Mark Mikulasik

What is a “core policy decision immune from negligence liability”?

In Nelson (City) v. Marchi, the Supreme Court of Canada confirms that:

• municipalities are immune from liability for policy decisions.
• the onus is on the municipality to prove that an injury results from a ‘core policy’ decision, rather than an ‘operational’ event.

They, in our view, fail to give municipalities, or injured parties for that matter, clear guidance on the distinction. If anything, adding the adjective “core” in front of “policy” may extend the liability of municipalities, by causing a wider ambit of activities to be excluded from the protection. The decision does however give us something of a roadmap as to how to defend future claims, and how effective decision-making will shift the boundaries of liability.

The finding that the city owed a duty of care to users of the highway was not surprising – it follows closely a Supreme Court decision from 1989. The effort of the municipality in this case to extend the protection to its snow removal policy simply gave the court an opportunity to restate the principles of how “core policy immunity” is identified, without giving a concise ‘one size fits all’ definition.

The process to identify a “core policy decision” requires a court to consider:

1. the level and responsibilities of the decision-maker
2. the process by which the decision is made
3. the nature and extent of budgetary considerations
4. the extent to which the decision was based on objective criteria.

The Court however, expressly excludes a couple of lazy means to try to justify a decision as “core policy”:

• the mere presence of budgetary or financial implications is not in itself enough to make a decision “core policy”
• labelling something a “policy” does not magically make it a protected decision.

So, what is a “core policy decision”?

As noted already, there is no simple definition. These hallmarks include:

• the level and responsibilities of the decision-maker. The higher the level of decision-maker, or the closer to the elected council that the decision is made, the more likely it is to be a core policy decision.
• the decision results from a deliberative decision involving competing objectives and goals, usually in a public forum
• decision making based on objective evidence rather than custom or practices
• high-level budgetary choices as opposed to day to day budgetary implementation

The effect of this case is quite narrow but it does provide an opportunity for municipalities to re-think decision-making and examine policy making versus delegation to managers and lower level employees. Every municipality will require its own balance. Thunder Bay differs from Rainy River, which differs from Wawa, which differs from Greenstone. What they all have in common is a need to make actual policy decisions at a high level, and then to provide clear direction in the delegation to the operating level.

If you wish to know more about how this might impact your municipality, please contact Weilers LLP.