Canadian Lawyer

November 2022

The most widely read magazine for Canadian lawyers

Issue link: https://digital.canadianlawyermag.com/i/1484187

Contents of this Issue

Navigation

Page 40 of 51

www.canadianlawyermag.com 39 based on the advice of its insurers, appealed to the Supreme Court of Canada. The case was never about whether Marchi, who ended up in a hospital in another city, was injured in the snowbank fall – both sides agreed that she was. However, the seven Supreme Court judges had to decide if a municipality's core policies, such as the obli- gation to maintain its streets, were immune from negligence claims. In October 2021, the court decided they were, but it also found problems with the city's snow-clearing operations and ordered a new trial in BC's Supreme Court. The SCC outlined four factors to be considered in assessing whether the nature of a government's decision was policy or operational: • the level and responsibilities of the deci- sion-maker • the process by which the decision was made • the nature and extent of budgetary considerations • the extent to which the decision was based on objective criteria The principle of policy immunity is a doctrine intended to create a separation of power so that courts aren't stepping over and interfering with elected officials' rights; it protects a municipality or other govern- ment from liability when that body makes a policy decision. In their reasons, Justices Andromache Karakatsanis and Sheilah Martin noted the definition of "policy" as "a high-level overall plan embracing the general goals and acceptable procedures, especially of a governmental body." "The underlying rationale – protecting the legislative and executive branch's core institu- tional roles and competencies necessary for the separation of powers – serves as an over- arching guiding principle for how to weigh the factors in the analysis," the justices wrote. The city of Nelson, BC, claimed that its decisions about snowplowing – resulting in snowbanks along the city curbs that separated parking stalls from sidewalks – MARCHI'S FOUR FACTORS FOR DETERMINING 'OPERATIONAL' OR 'CORE POLICY' "There are pros and cons for lawyers for the plaintiff and the public authority. The question is whether [the SCC decision] will prolong the litigation process or streamline it" Lyndsay Jardine, Wagners the level and responsibilities of the decision-maker the process by which the decision was made – a deliberative decision balancing competing objectives, or a matter of custom? the nature and extent of budgetary considerations – the big policy picture, not individual cost considerations the extent to which the decision was based on objective criteria

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian Lawyer - November 2022