Case Law Review: Nelson (City) v. Marchi

This case involves the interplay between what is a core policy versus what is the operational or government activities, which attract liability for negligence.    Operational implementation is subject to private law principles of negligence whereas core policy decisions are immune from such principles.  This decision was made in the context of a slip and fall accident caused by snowbanks on a public road.


The Supreme Court of Canada provided a structured framework for determining whether a government decision is a core policy decision.  The framework is as follows:


  1. Consideration of the level and responsibilities of the decision maker.  What is relevant is how closely related the decision maker is to a democratically accountable officer who beards responsibility for public policy decisions.  At paragraph [62], “[T]he 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).”  
  2. The decision making process.  At paragraph [63], “[T]he 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.”  
  3. Budgetary considerations.  At paragraph [64], “[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.  
  4. The extent to which the decision was based on objective criteria and was not made in an irrational or bad faith manner.  At paragraph [65], “[T]he 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.”


The Court noted that the underlying rationale — protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers — was the overarching guiding principle for how to weigh the factors in the analysis.

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