The Supreme Court of Canada released its decision on the appeal in Nelson (City) v. Marchi on October 21, 2021. Given that the last decision of our country’s highest court concerning highway non-repair in a common law jurisdiction, Housen v. Nikoliasen, was released almost 20 years ago, it has understandably attracted the attention of municipalities across Canada, including, of course, those in Ontario.
The basic fact pattern in Marchi is one the writer and undoubtedly many readers of this article have seen regularly over the years in lawsuits against Ontario municipalities: a claimant parks her/his car in a parking spot on the road, decides to scramble over a snow windrow separating the road from the sidewalk created by the plowing of the road and slips and falls while attempting to do so. Given the mundaneness of the circumstances giving rise to the claim, it is of
interest that the Supreme Court deemed it worthy of its consideration.
While the decision is of significance to the development of negligence law as applied to public authorities generally and municipalities in particular, it is of no significance to the development of liability for highway non-repair in Ontario, or anywhere else where the governing legislation provides for both a mandatory duty and standard of care for the repair of highways.¹
In particular, municipalities in Ontario have never been entitled to rely on the so-called policy decision defence discussed in Marchi in the highway non-repair context because of the presence of the mandatory statutory duty for such claims set out in s. 44 of the Municipal Act, 2001. Furthermore, the Supreme Court did not decide whether the actions of the City of Nelson were negligent in relation to clearing the windrow or paths through the windrow; rather, it
remanded the case back to the court of first instance for a new trial to determine that issue.
The City of Nelson experienced heavy snowfall on January 4th and 5th, 2015. It started plowing and sanding the streets to respond to the snowfall. Among the tasks completed by City employees was the clearing of snow in angled parking stalls on Baker Street, located in the downtown core. The plowing of the parking spaces created a snowbank along the curb that separated the parking stalls from the sidewalk. Having created the snowbank, the City did not clear an access route to the sidewalk for drivers parking in the stalls.
On the evening of January 6th, Ms. Marchi parked in one of the angled parking stalls on Baker Street. She was attempting to access a business, but the snowbank created by the City blocked her route to the sidewalk. Rather than walk along the road to the nearest street corner, she decided to cross the snowbank. On the course of attempting to do so, she fell and seriously injured her leg. She sued the City for negligence and the parties agreed her damages at $1 Million.
Since 2000, the City had relied on a written document called “Streets and Sidewalks Snow Clearing and Removal” (“the Policy”). Broadly, the Policy stated that snow removal, sanding, and plowing would be carried out “on a priority schedule to best serve the public and accommodate emergency equipment within budget guidelines.” The Policy set out the following priorities: emergency routes and the downtown core; transit routes; plowing hills; cross streets; and dead end streets. The location of the fall was located in the “downtown core”. The Policy also provided specific guidelines that snow plowing will occur during the early morning hours and that snow removal may be carried out as warranted by buildup levels. It does not specifically mention clearing parking stalls or creating snowbanks.
In addition to the written Policy, the City also had several unwritten practices. For example, it plows, sands, and removes snow from the designated sidewalk route and the various stairs located in the City. It focuses on Baker Street in the downtown core for snow removal, but to ensure safety, City workers begin to remove snow from other areas, including the civic centre and around schools, when the downtown core starts to get busy (typically around 11:00 a.m.).
They return to Baker Street as soon as possible. The City does not remove snow from the downtown core overnight due to noise complaints received in the past as well as the cost of overtime.
Throughout the snowfall, the City’s public works supervisor followed the Policy and made decisions about how many employees should be on snow removal shifts. Her evidence was that all streets in the City are first cleared of snow, and snowbanks are only removed after all snow plowing is complete. The downtown core was completely cleared of snow, and all snowbanks were removed, by January 9th, 2015, 4 days after the end of the heavy snowstorm (the remarkable quickness with which the City removed the snowbanks following a heavy dump of snow apparently went unnoticed by the Supreme Court as nowhere in the decision is this fact noted).²
The key issue, as framed by the Court, was whether the City’s decision not to clear pathways through windrows such as to permit drivers who parked vehicles in parking spots on the road to safely access the sidewalks and adjoining businesses was a “core policy decision” as defined by the SCC in Just v. British Columbia3 and refined in R. v. Imperial Tobacco,4 and as had been found by the Trial Judge.
The Court reminded readers based on its pre-existing jurisprudence that core policy decisions are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. Core policy decisions are immune from negligence liability because the legislative and executive branches have core institutional roles and competencies that must be
protected from interference by the judiciary’s private law oversight. A court must consider the extent to which a government decision was based on public policy considerations and the extent to which the considerations impact the rationale for core policy immunity.
It further held that four factors emerge that help in assessing the nature of a government’s 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. The underlying rationale — protecting the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers — serves as an overarching guiding principle for how to weigh the factors in the analysis. Thus, the nature of the decision along with the hallmarks and factors that inform its nature must be assessed in light of the purpose animating core policy immunity. The mere presence of budgetary, financial, or resource implications does not determine whether a decision is core policy. Further, the fact that the word “policy” is found in a written document, or that a plan is labelled as “policy” is certainly not determinative of the question.
The Supreme Court held that the City had not proved that its decision to clear the snow from the parking stalls in which the Plaintiff parked by creating snowbanks along the sidewalks without ensuring direct access to sidewalks was a core policy decision immune from liability in negligence. The City’s decision bore none of the hallmarks of core policy. In relation to the four factors the Court cited as being relevant to the core policy decision analysis, the Court found:
1. The City’s public works supervisor admitted that she did not have the authority to make a different decision with respect to the clearing of parking stalls;
2. There was no suggestion that the method of plowing the parking stalls resulted from a deliberative decision involving any prospective balancing of competing objectives and policy goals by the supervisor or her superiors. There was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks – the City’s evidence is that this was a matter of custom;
3. Although it is clear that budgetary considerations were involved, these were not high-level budgetary considerations but rather the day-to-day budgetary considerations of individual employees;
4. The City’s chosen method of plowing the parking stalls can easily be assessed based on objective criteria.
The Court therefore concluded that the City’s core policy defence failed and that it owed the Plaintiff a duty of care.
The Court further held that the Trial Judge erred in his approach to the standard of care in that he imported considerations relating to core policy immunity (the City made a policy decision in good faith and continued to follow it because that is the way it had always been done) and failed to “engage with” evidence about the practices of neighbouring municipalities (by considering why the City could not have avoided the hazard in question by using certain on-street parking spaces for snow storage as other municipalities did).) The Court described the proper
test as follows:
The Court then held that the Trial Judge erred in his causation analysis (in holding that the Plaintiff’s negligent decision to traverse the snowbank was the proximate cause of her injury rather than a factor going to contributory negligence) since he never asked whether, but for the City’s breach of the standard of care, the Plaintiff would have been injured and never addressed the remoteness question of whether the specific injury was reasonably foreseeable.
Finally, the Court found that the Trial Judge improperly applied the concept of voluntary assumption of risk as there was no evidence that the Plaintiff agreed to waive the City’s legal responsibility for her actions as the prevailing law requires for this defence to succeed.
The Court declined to substitute its own findings of fact for that of the Trial Judge and remanded the case to the British Columbia Supreme Court for a new trial.
The Marchi Decision Has No Impact on the Law of Highway Non-repair in Ontario
The SCC decision in Marchi essentially has no impact on the law governing highway non-repair in Ontario for three reasons:
1. Ontario municipalities never did have recourse to the “policy decision defence” in the highway non-repair context because of the mandatory statutory duty of care set out in s. 44 of the Municipal Act, 2001 and its predecessors dating back to the early 1900’s;
2. The Supreme Court did not rule on the reasonableness or unreasonableness – and therefore negligence – of the City of Nelson’s actions in relation to clearing paths through the windrow to facilitate motorists parked on the road to access the sidewalk; rather, it ordered a new trial where that issue will be determined;
3. The analyses outlined by the Supreme Court with respect to the standard of care and causation were already well-established law.
Regarding the first point, in Restoule v. Strong (Township),5 the Ontario Court of Appeal rejected a municipality’s reliance on the policy decision immunity given the existence of the mandatory duty of care for the repair of highways set out in s. 284 of the Municipal Act, 2001 (which is materially identical to s. 44 of the current legislation).6 Rightly or wrongly, the Court of Appeal reasoned in Restoule that because of the mandatory statutory duty, decisions regarding the manner in which a municipality maintains its highways, including the reasonableness of its budgetary decisions in relation to same, are matters for review by the courts to determine whether the municipality has fulfilled its statutory duty rather than matters within the municipality’s discretion to determine in its own judgment. Ironically, evidence regarding policy decisions in municipal highway non-repair cases is more often used to impose liability on municipalities, rather than shield them from it, where such policies are not adhered to.
Does s. 450 of the Municipal Act, 2001 change the foregoing analysis? In the writer’s opinion, it clearly does not. Here is the text of that section:
450 No proceeding based on negligence in connection with the exercise or non-exercise of a discretionary power or the performance or non-performance of a discretionary function, if the action or inaction results from a policy decision of a municipality or local board made in a good faith exercise of the discretion, shall be commenced against,
(a) a municipality or local board;
(b) a member of a municipal council or of a local board; or
(c) an officer, employee or agent of a municipality or local board.
The key aspects of s. 450 are that it applies only to “proceedings based on negligence” and only relates to a “discretionary power” or “discretionary function.” The statutory cause of action for highway non-repair in Ontario does not fall within any of these categories: it is not an action in negligence but rather an action based on the statutorily codified cause of action and no “exercise of power” or “performance or non-performance” in respect of the maintenance of highways is discretionary as the statutory duty imposes mandatory obligations on municipalities
to keep their roads in a state of non-repair. That is essentially the same reason why the courts have held that the policy decision immunity at common law has no application to the statutory duty to maintain highways in a state of repair.7
Concerning the second point, the Court was obviously concerned that the Trial Judge worked back from a visceral belief that the municipality should not be found liable but failed to undertake the correct analysis to reach that conclusion based on proper legal principles.
Does Marchi Say Anything of Relevance to Ontario Municipalities?
Despite the fact that the policy decision immunity does not apply in the context of two of the most common types of claims faced by municipalities in Ontario, highway non-repair and occupiers’ liability (where there is also a mandatory statutory duty),8 the policy decision immunity remains relevant to many other high-level policy decisions by public authorities, including municipalities. In the municipal context, these include decisions regarding building inspection, planning and zoning, water and wastewater, non-highway infrastructure construction and maintenance and environmental regulation, to name but a few areas of municipal activity.
The Supreme Court has, however, clearly signaled in Marchi that lower courts should assume they have jurisdiction to review decisions of public authorities of a policy nature based on the private law duty of care except in the clearest of contexts. The unfortunate impact of Marchi is that it signals that the policy decision immunity was applied too broadly by the Trial Judge and the Court sets out a series of factors to be considered. The decision was likely intended to, and will have the likely effect of, narrowing the policy decision immunity compared to how it has been applied by trial courts in recent years.
Policy Considerations Are Relevant In Determining the Appropriate Standard of Care For the Maintenance of Ontario Highways
The Courts have long held that policy considerations such as the availability of personnel, budgetary and logistical considerations do inform the standard of care under s. 44 of the Municipal Act, 2001.9 Unlike in jurisdictions such as British Columbia where the policy decision immunity is available such that the mere proof that a rational policy exists can be sufficient to absolve the municipality from liability for highway non-repair, in Ontario, municipalities needs to
establish that its policy is reasonable, not merely rational, in order to be found to have met the
reasonable standard of care.
On the facts in Marchi, for example, in order to demonstrate that a requirement for the quicker removal of windrows or the cutting of paths through the windrows would be unreasonable from the standpoint of policy considerations, the municipality might have lead evidence about:
- If removal of windrows on downtown streets was made a higher priority, it would mean plowing and salting of residential streets, or sidewalk clearing, would be delayed in the absence of a significant increase in equipment and personnel;
- With respect to plowing paths through windrows, significant additional equipment (such as snowblowers and perhaps also pick-up trucks to transport the snowblowers from location to location) and personnel would be required at significant additional cost to the City’s taxpayers.
Municipal roads departments ideally should document their consideration of these issues when establishing winter maintenance policies so they are easily tendered as evidence in a court case.
Municipal road authorities seeking to minimize their liability exposure should continue to at least meet the standards set out in the Municipal Maintenance Standards, O. Reg. 239/02 and follow best practices such as those set out in the Ontario Traffic Manual relating to things such as signage and road manuals and road design standards set out in guidance such as the TACC manuals.
¹This includes Alberta, Manitoba, Saskatchewan, Northwest Territories, Yukon Territory and Nunavut, in addition to Ontario. The rest of the provinces, including British Columbia, the law of which was examined in Marchi, look to the common law to define the duty and standard of care for highway non-repair rather than a statute. For a detailed discussion of this point, see D.G. Boghosian and J.M. Davison, The Law of Municipal Liability in Canada (loose-leaf; LexisNexis Butterworths), paras. 3.3-3.35. Notably, the Supreme Court in Marchi cites this textbook approvingly in the course of its Reasons: see 2021 SCC 41, para. 38. The British Columbia Court of Appeal also cited this textbook on a different point in its Reasons in this case.
2To put this in perspective, under the policies of the City of Toronto, for an arterial road such as Yonge Street, snow need only be removed within 14 days following the end of a snowfall and then only if at least 30 cm has accumulated: see Toronto.ca/When/How we Clear Snow & Ice.
3  2 S.C.R. 1228.
4 2011 SCC 42.
5 (1999), 4 M.P.L.R. (3d) 163.
6 The Alberta Court of Appeal had previously come to a similar conclusion regarding that province’s mandatory statutory duty to keep highways in a reasonable state of repair in Berezowski v. Edmonton (City),  6 W.W.R.
7 Indeed, an Ontario trial judge has specifically held that s. 450 of the Municipal Act, 2001 has no application to the cause of action under s. 44 the Act for essentially this reason: see Cooney v. Kingston (City), 2005 CanLII 18858 (ONSC). No Ontario court has held otherwise.
8 Kennedy v. Waterloo Board of Education (1999), 45 O.R. (3d) 1 (C.A.); leave to appeal to SCC refused, 
S.C.C.A. No. 399.
9 D.G. Boghosian and J.M. Davison, The Law of Municipal Liability in Canada (loose-leaf; LexisNexis Butterworths), paras. 3.61 and 3.78-3.81, together with the cases cited in the footnotes therein. In Greenhalgh v. Douro-Dummer (Township), the writer successfully defended a small, rural municipality in part on the basis that failing to install Checkerboard and No Exit signs at the end of a low volume, rural, dead-end road did not breach the standard of care despite that not complying with the Ontario Traffic Manual, with the Trial Judge noting: “budgetary realities are valid considerations in adopting a lower standard of repair than might otherwise be the case:”  O.J. No. 5438 (S.C.J.). para. 61; aff’d,  O.J. No. 2012 (C.A.).