Policy decision immunity is a legal doctrine that has haunted injury victims for decades. Here at Wagners, our experienced personal injury lawyers deal with this very issue on a daily basis. The idea is that governmental bodies cannot be held liable for policy decisions and injuries resulting from these decisions. By labeling actions or inactions as policy decisions, governmental bodies have been able to claim immunity from negligence claims.
Operational decisions, on the other hand, are decisions that are made while implementing policies and subject to liability claims.
In theory this makes sense. The doctrine was created to prevent courts from stepping in and interfering with the rights of elected officials to make high level policies after deliberate consideration of policy goals and the balancing of competing objectives.
The problem is that, in practice, simply labelling something as “policy” rather than an operational decision has become common place and been used as a means of avoiding liability to injured people.
This is most commonly seen when dealing with slip and fall injuries as a result of poor snow clearing practices. Often budgetary concerns are raised by governments as the reason for delayed snow clearing. So basically, the argument is made that delayed clearing of ice and snow is a result of an intentional policy decision rather than an operational decision on how to go about clearing ice and snow.
Clear as mud? If not, that’s ok. Even lawyers struggle with this concept. Thankfully, the Supreme Court of Canada has recently stepped in and provided guidance as to what is policy and therefore immune, and what is not.
In Nelson (City) v. Marchi, 2021 SCC 41, the plaintiff was injured when climbing over a snowbank that had been created when city snow crews plowed a parking lot adjacent to a sidewalk. The City defended the claim stating that the snow crew’s actions were core policy decisions and, therefore, immune from liability. While the trial judge agreed with the City’s argument and dismissed the claim, the BC Court of Appeal allowed the plaintiff’s appeal and ordered a new trial.
The Supreme Court of Canada agreed with the Court of Appeal and found that the city’s snow clearance and removal was an operational, not a policy decision, and, as such, was not immune from negligence claims. Instead, the Court listed four factors to consider when assessing the nature of the 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.
As the Court stated, the overarching guiding principle for how to weigh the factors in the analysis continues to be protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers. If you don’t understand what that means, that’s ok – Wagners’ personal injury lawyers do and are here to assist.
These factors, when applied to the case of Nelson (City) v. Marchi, made it clear that the City’s decision in how to plow its roads of snow “bore none of the hallmarks of core policy” as stated by the Court. While the City’s snow crew decisions were somewhat related to budgetary considerations, these were the day-to day budgetary considerations of individual employees rather than high-level budgetary considerations.
What does that mean going forward? Well, now, simply labelling something as policy is not enough. What matters now is the nature of the decision itself and who makes that decision. For those injured as a result of government action (or inaction), it means governments cannot avoid responsibility by classifying their decisions as policy. They must prove it was a thought out, deliberate decision made by high level officials after a careful consideration and balancing of the competing interests and the needs of their constituents.
Again, this is a lot of legal jargon that may still be confusing. Here at Wagners, our injury lawyers are experienced in bringing claims against governmental bodies and are happy to chat with you at any time. If you have had a slip and fall on ice or snow, or have been injured on government property, book your free consultation now.