Supreme Court of Canada to Review Policy vs. Operational Decisions

Written on August 31, 2020.

The SCC has granted leave to appeal from a B.C. Court of Appeal decision, which set aside a Trial Decision in favor of a municipal defendant, that upheld a “policy defence”. Following a heavy snowfall in January of 2015, the municipal defendant cleared snow on the downtown streets in a way that created snowbanks along the street’s curb and onto the sidewalk. The Plaintiff parked her car on the side of the street and there was a snowbank between her vehicle and the sidewalk. As the Plaintiff attempted to cross the snowbank, her right foot fell through and she injured her leg. Naturally, she sued because how could it possibly not be someone else’s fault?

The Plaintiff claimed that the municipality should have constructed openings in the snowbanks to allow “safe access” from the street onto the sidewalk. At Trial the Judge held the claim barred due to policy immunity, at least that is what the Defendant municipality had argued and the Trial Judge seems to have accepted. The BCCA found however that the Trial Judge’s decision was deficient for “a failure to identify the types of governmental decisions that should be insulated from judicial scrutiny” (i.e. failing to expressly state what policy decision was immune), and ordered a whole new Trial. (Rather than simply fill in the small gap in the Judge’s reasons via reasonable inference…what the heck, its only another Trial and taxpayer’s money right?).

The claim is somewhat similar to the Ontario decision in Bondy, which dismissed a slip and fall claim against the City of London for not salting the “apron” at the bottom of a private driveway technically within the municipal road allowance, (not feasible financially) as similarly it would be arguably just as ridiculous and far too costly to expect a municipality to be able to perform the type of maintenance demanded by the Plaintiff (i.e. cutting little paths through the snowbanks). The difference being our Court of Appeal actually ruled in favor of the municipal defendant in Bondy, whereas in apparently Plaintiff-friendly B.C., their Court of Appeal seems to have bent over backwards to award damages to the Plaintiff and nullify a policy defence success at trial.

It will be very interesting, even in a Province like Ontario where the duty to maintain is statutory, to see how the SCC updates the law on policy vs. operational decisions, and whether any certainty can be brought to an area of municipal law that has been plagued by uncertainty for many years. Given the recent changes to Ontario law regarding suing the Province of Ontario and immunity for policy decisions, it will indeed be interesting to see how the Supreme Court weighs in.