Nelson (City) v. Marchi

Nelson (City) v. Marchi
Collection
Supreme Court Judgments
Date
2021-10-21
Neutral citation
2021 SCC 41
Report
[2021] 3 SCR 55
Case number
39108
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
British Columbia
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55
Appeal Heard: March 25, 2021 Judgment Rendered: October 21, 2021 Docket: 39108
Between: City of Nelson Appellant
and
Taryn Joy Marchi Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Trial Lawyers Association of British Columbia, Ontario Trial Lawyers Association, City of Abbotsford and City of Toronto Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment: (paras. 1 to 103):
Karakatsanis and Martin JJ. (Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ. concurring)
City of Nelson Appellant
v.
Taryn Joy Marchi Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta,
Trial Lawyers Association of British Columbia,
Ontario Trial Lawyers Association,
City of Abbotsford and
City of Toronto Interveners
Indexed as: Nelson (City) v. Marchi
2021 SCC 41
File No.: 39108.
2021: March 25; 2021: October 21.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for british columbia
Torts — Negligence — Duty of care — Government liability — Core policy immunity — Snow clearing and removal — Person injured while attempting to cross snowbank created by city when clearing snow — City’s snow clearing and removal decisions made in accordance with written policies and unwritten practices — Whether relevant city decision was core policy decision immune from negligence liability.
After a heavy snowfall, the city started plowing and sanding streets pursuant to its written snow clearing and removal policies and unwritten practices. Among the tasks completed by city employees was the clearing of snow in angled parking stalls on streets located in the downtown core. Employees plowed the snow to the top of the parking spaces, creating a continuous snowbank along the curb that separated the parking stalls from the sidewalk. They did not clear an access route to the sidewalk for drivers parking in the stalls. M parked in one of the angled parking stalls. She was attempting to access a business, but the snowbank created by the city blocked her route to the sidewalk. She decided to cross the snowbank and seriously injured her leg. M sued the city for negligence. The trial judge dismissed M’s claim concluding that the city did not owe M a duty of care because its snow removal decisions were core policy decisions. In the alternative, he also found that there was no breach of the standard of care and that in the further alternative, if there was a breach, M was the proximate cause of her own injuries. The Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial.
Held: The appeal should be dismissed.
The city has not met its burden of proving that M seeks to challenge a core policy decision immune from negligence liability. Accordingly, it owed M a duty of care. The regular principles of negligence law apply in determining whether the city breached the duty of care and, if so, whether it should be liable for M’s damages. The standard of care and causation assessments require a new trial.
In Canada, the Anns/Cooper test provides a unifying framework to determine when a duty of care arises under the wide rubric of negligence law, including for allegations of negligence against government officials. The framework applies differently depending on whether the plaintiff’s claim falls within or is analogous to an established duty of care or whether the claim is novel because proximity has not been recognized before. In novel duty of care cases, the full two‑stage Anns/Cooper framework applies. When the duty of care at issue is not novel, there is generally no need to proceed through the full two‑stage Anns/Cooper framework. Over the years, courts in Canada have developed a body of negligence law recognizing categories of cases in which a duty of care has previously been established.
The Court had an opportunity to apply the full two‑stage duty of care framework to a case involving personal injury on a public road in Just v. British Columbia, [1989] 2 S.C.R. 1228. At the prima facie stage, the Court held that users of a highway are in a sufficiently proximate relationship to the province because in creating public highways, the province creates a physical risk to which road users are invited. The Court found that the duty of care should apply to public authority defendants unless there is a valid basis for its exclusion: first, statutory provisions that exempt the defendant from liability, and second, immunity for true policy decisions. While such policy decisions are exempt from claims in negligence, the operational implementation of policy may be subject to the duty of care in negligence. The factors uniting cases under the Just category are: a public authority has undertaken to maintain a public road or sidewalk to which the public is invited, and the plaintiff alleges they suffered personal injury as a result of the public authority’s failure to maintain the road or sidewalk in a reasonably safe condition. Where these factors are present, the Just category will apply, obviating the need to establish proximity afresh. Therefore, once a plaintiff proves that her case falls within the Just category, a duty of care will be imposed, unless the public authority can show that the relevant government decision is protected by core policy immunity.
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. In addition, 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. But 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” may be misleading and is certainly not determinative of the question.
In the instant case, M has proved that her circumstances fall within the scope of the Just category. She suffered significant physical injury on a municipal street, and by plowing the parking spaces on the street where M parked, the city invited members of the public to use them to access businesses along the street. The Just category clearly extends to the prevention of injuries from snowbanks created by a government defendant on the roads and sidewalk.
The city has not proved that its decision to clear the snow from the parking stalls in which M 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. Although the extent to which the city’s public works supervisor was closely connected to a democratically‑elected official is unclear from the record, she disclosed that she did not have the authority to make a different decision with respect to the clearing of parking stalls (the first factor). In addition, there is 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 (the second factor). 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 (the third factor). Finally, the city’s chosen method of plowing the parking stalls can easily be assessed based on objective criteria (the fourth factor). Therefore, the city’s core policy defence fails and it owed M a duty of care.
The trial judge’s treatment of the standard of care was flawed because he imported considerations relating to core policy immunity and failed to engage with the practices of the neighbouring municipalities. The trial judge also erred in his causation analysis since he never asked whether, but for the city’s breach of the standard of care, M would have been injured and never addressed the remoteness question of whether the specific injury was reasonably foreseeable.
Cases Cited
Applied: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Just v. British Columbia, [1989] 2 S.C.R. 1228; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Anns v. Merton London Borough Council, [1978] A.C. 728; referred to: Donoghue v. Stevenson, [1932] A.C. 562; Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587; Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Sutherland Shire Council v. Heyman (1985), 157 C.L.R. 424; Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445; Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; Tambeau v. Vancouver (City), 2001 BCSC 651, 20 M.P.L.R. (3d) 195; Talarico v. Northern Rockies (Regional District), 2008 BCSC 861, 47 M.P.L.R. (4th) 242; Bowden v. Withrow’s Pharmacy Halifax (1999) Ltd., 2008 NSSC 252, 48 M.P.L.R. (4th) 250; Lichy v. City of Surrey, 2016 BCPC 55; N. v. Poole Borough Council (AIRE Centre Intervening), [2019] UKSC 25, [2020] A.C. 780; Dalehite v. United States, 346 U.S. 15 (1953); Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, [2016] 1 F.C.R. 446; Barratt v. Corporation of North Vancouver, [1980] 2 S.C.R. 418; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Home Office v. Dorset Yacht Co., [1970] A.C. 1004; Blessing v. United States, 447 F. Supp. 1160 (1978); Berkovitz v. United States, 486 U.S. 531 (1988); United States v. Muniz, 374 U.S. 150 (1963); Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; George v. Newfoundland and Labrador, 2016 NLCA 24, 378 Nfld. & P.E.I.R. 46; United States v. Varig Airlines, 467 U.S. 797 (1984); 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, [2020] 3 S.C.R. 504; United States v. Gaubert, 499 U.S. 315 (1991); Hendry v. United States, 418 F.2d 774 (1969); Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Bolton v. Stone, [1951] A.C. 850; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; British Columbia Electric Railway Co. v. Dunphy, [1919] 59 S.C.R. 263; Dube v. Labar, [1986] 1 S.C.R. 649.
Statutes and Regulations Cited
Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 2.
Negligence Act, R.S.B.C. 1996, c. 333, s. 1(1).
Occupiers Liability Act, R.S.B.C. 1996, c. 337, s. 8(2).
Authors Cited
Bagby, John W., and Gary L. Gittings. “The Elusive Discretionary Function Exception From Government Tort Liability: The Narrowing Scope of Federal Liability” (1992), 30 Am. Bus. L.J. 223.
Boghosian David G., and J. Murray Davison. The Law of Municipal Liability in Canada. Markham, Ont.: LexisNexis, 1999 (loose‑leaf updated November 2011, release 57).
Cambridge Dictionary (online: https://dictionary.cambridge.org), “policy”.
Deegan, Anne. “The Public/Private Law Dichotomy And Its Relationship With The Policy/Operational Factors Distinction in Tort Law” (2001), 1 Q.U.T.L.J.J. 241.
Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021, release 1).
Hogg, Peter W., Patrick J. Monahan and Wade K. Wright. Liability of the Crown, 4th ed. Toronto: Carswell, 2011.
Klar, Lewis N., and Cameron S. G. Jefferies. Tort Law, 6th ed. Toronto: Thomson Reuters, 2017.
Klar, Lewis N. “The Supreme Court of Canada: Extending the Tort Liability of Public Authorities” (1990), 28 Alta. L. Rev. 648.
Krent, Harold J. “Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability in Tort” (1991), 38 U.C.L.A. L. Rev. 871.
Linden, A. M., et al. Canadian Tort Law, 11th ed. Toronto: LexisNexis, 2018.
Makuch, Stanley M. “Municipal Immunity From Liability in Negligence”, in Freda M. Steel and Sandra Rodgers‑Magnet, eds., Issues in Tort Law. Toronto: Carswell, 1983, 221.
Merriam‑Webster’s Collegiate Dictionary, 11th ed. Springfield, Mass.: Merriam‑Webster, 2003, “policy”.
Osborne, Philip H. The Law of Torts, 6th ed. Toronto: Irwin Law, 2020.
Peterson, Bruce A., and Mark E. Van Der Weide. “Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity” (1997), 72 Notre Dame L. Rev. 447.
APPEAL from a judgment of the British Columbia Court of Appeal (Willcock, Fitch and Hunter JJ.A.), 2020 BCCA 1, 32 B.C.L.R. (6th) 213, 442 D.L.R. (4th) 697, [2020] 9 W.W.R. 1, 98 M.P.L.R. (5th) 31, [2020] B.C.J. No. 1 (QL), 2020 CarswellBC 1 (WL Can.), setting aside a decision of McEwan J., 2019 BCSC 308, 89 M.P.L.R. (5th) 323, [2019] B.C.J. No. 355 (QL), 2019 CarswellBC 472 (WL Can.), and ordering a new trial. Appeal dismissed.
Greg Allen and Liam Babbitt, for the appellant.
Danielle K. Daroux and Michael J. Sobkin, for the respondent.
Sean Gaudet, for the intervener the Attorney General of Canada.
Sonal Gandhi, for the intervener the Attorney General of Ontario.
Meghan Butler, for the intervener the Attorney General of British Columbia.
Doreen Mueller, for the intervener the Attorney General of Alberta.
Written submissions only by Ryan D. W. Dalziel, Q.C., for the intervener the Trial Lawyers Association of British Columbia.
K. Jay Ralston, for the intervener the Ontario Trial Lawyers Association.
Aniz Alani, for the intervener the City of Abbotsford.
Michael J. Sims, for the intervener the City of Toronto.
The judgment of the Court was delivered by
Karakatsanis and Martin JJ. —
I. Overview
[1] Under Canadian tort law, there is no doubt that governments may sometimes be held liable for damage caused by their negligence in the same way as private defendants. At the same time, the law of negligence must account for the unique role of public authorities in governing society in the public interest. Public bodies set priorities and balance competing interests with finite resources. They make difficult public policy choices that impact people differently and sometimes cause harm to private parties. This is an inevitable aspect of the business of governing. Accountability for that harm is found in the ballot box, not the courts. Courts are not institutionally designed to review polycentric government decisions, and public bodies must be shielded to some extent from the chilling effect of the threat of private lawsuits.
[2] Accordingly, courts have recognized that a sphere of government decision-making should remain free from judicial supervision based on the standard of care in negligence. Defining the scope of this immunity has challenged courts for decades. In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, this Court explained that “core policy” government decisions — defined as “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors” — must be shielded from liability in negligence (para. 90). In ascertaining whether a decision is one of core policy, the key focus is always on the nature of the decision.
[3] In the decade since Imperial Tobacco, there has been continued confusion on when core policy immunity applies. This appeal requires the Court to clarify how to distinguish immune policy decisions from government activities that attract liability for negligence. We conclude that the rationale for core policy immunity serves as an overarching guiding principle. Core policy decisions are immune from negligence liability because each branch of government has a core institutional role and competency that must be protected from interference by the other branches. We identify four factors from this Court’s jurisprudence 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 separation of powers rationale animating the immunity guides how the factors weigh in the analysis.
[4] The respondent, Taryn Joy Marchi, was injured while attempting to cross a snowbank created by the appellant, the City of Nelson, British Columbia. She sued the City for negligence. Dismissing her claim, the trial judge concluded that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions. In the alternative, he also found that there was no breach of the standard of care and, if there was a breach, Ms. Marchi was the proximate cause of her own injuries. The Court of Appeal concluded that the trial judge erred on all three conclusions and ordered a new trial.
[5] We agree with the Court of Appeal that the trial judge erred on all three conclusions. On duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City therefore owed Ms. Marchi a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, this Court is not well placed to determine the standard of care and causation issues. We would therefore dismiss the appeal and order a new trial in accordance with these reasons.
II. Facts
[6] 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. Employees plowed the snow to the top of the parking spaces, creating 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.
[7] 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. She decided to cross the snowbank. As her right foot stepped onto it, however, she dropped through the snow, stepped directly into an area which bent her forefoot up, and seriously injured her leg. She sued the City for negligence and the parties agree that she suffered $1 million in damages.
[8] Since 2000, the City has relied on a written document called “Streets and Sidewalks Snow Clearing and Removal” (Policy). Broadly, the Policy states that snow removal, sanding, and plowing will be carried out “on a priority schedule to best serve the public and accommodate emergency equipment within budget guidelines” (A.R., vol. I, at p. 56). The Policy sets out the following priorities: emergency routes and the downtown core; transit routes; plowing hills; cross streets; and dead end streets. Ms. Marchi was injured in the 300 block of Baker Street, which is in the “downtown core”. The Policy also provides 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.
[9] In addition to the written Policy, the City also has 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.
[10] 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.
III. Decisions Below
A. Supreme Court of British Columbia, 2019 BCSC 308, 89 M.P.L.R. (5th) 323 (McEwan J.)
[11] The trial judge held that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions. The City followed its written and unwritten policies on snow removal and its decisions were dictated by the availability of resources. Alternatively, the trial judge found that the City did not breach the standard of care because the snowbank did not pose an objectively unreasonable risk of harm — the City did what was reasonable in the circumstances. In the further alternative, the trial judge concluded that the City’s alleged negligence did not cause the accident because Ms. Marchi was the “author of her own misfortune” (para. 45).
B. Court of Appeal for British Columbia, 2020 BCCA 1, 98 M.P.L.R. (5th) 31 (Willcock, Fitch and Hunter JJ.A.)
[12] The Court of Appeal unanimously allowed the appeal and ordered a new trial. On duty of care, it held that the trial judge did not properly engage with the distinction between government policy and operation, simply accepting the City’s submission that all snow removal decisions were core policy decisions. On standard of care, it held that the trial judge’s analysis was improperly coloured by his view that the snow removal decisions were core policy decisions. The trial judge accepted the City’s submission that this was “the way it has always been done” (para. 35) without engaging with other municipalities’ evidence on snow removal. On causation, the Court of Appeal held that the trial judge misunderstood how to factor in Ms. Marchi’s own fault. The trial judge improperly reasoned that, if Ms. Marchi could have avoided the accident, she was the proximate cause of her injuries. This was a failure to apply the “but for” test for causation.
IV. Analysis
[13] There are three issues on appeal: whether the trial judge erred in concluding that the City did not owe Ms. Marchi a duty of care because its snow removal decisions were core policy decisions immune from negligence liability; whether the trial judge erred in his standard of care analysis; and whether the trial judge erred in his causation analysis.
A. Duty of Care
[14] Duty of care is the central issue. To determine whether the trial judge erred, we proceed as follows. First, we set out the duty of care framework. Second, we explain how the previously established category from Just v. British Columbia, [1989] 2 S.C.R. 1228, operates, clarifying why this case falls within the Just category. Third, we consider the law on distinguishing core policy decisions from government activities that attract liability in negligence. We then apply the law to the trial judge’s determination in this case that the City did not owe Ms. Marchi a duty of care.
(1) Duty of Care Framework
[15] The foundation of the modern law of negligence is the neighbour principle established in Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), under which “parties owe a duty of care to those whom they ought reasonably to have in contemplation as being at risk when they act” (Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, at para. 16). The neighbour principle does not discriminate between private and public defendants — it is applicable to both alike, subject to any contrary statutory provision or common law principle (Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 22).
[16] In Canada, the Anns/Cooper test provides a unifying framework to determine when a duty of care arises under the wide rubric of negligence law, including for allegations of negligence against government officials. But as Cooper and subsequent cases make clear, the framework applies differently depending on whether the plaintiff’s claim falls within or is analogous to an established duty of care or whether the claim is novel because proximity has not been recognized before.
[17] In novel duty of care cases, the full two-stage Anns/Cooper framework applies. Under the first stage, the court asks whether a prima facie duty of care exists between the parties. The question at this stage is whether the harm was a reasonably foreseeable consequence of the defendant’s conduct, and whether there is “a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff” (Rankin’s Garage, at para. 18). Proximity arises in those relationships where the parties are in such a “close and direct” relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law upon the defendant” (Cooper, at paras. 32 and 34).
[18] If there is sufficient proximity to ground a prima facie duty of care, it is necessary to proceed to the second stage of the Anns/Cooper test, which asks whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care (Cooper, at para. 30). As stated in Cooper, at para. 37, the residual policy stage of the Anns/Cooper test raises questions relating to “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”, such as:
Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized?
[19] When the duty of care at issue is not novel, there is generally no need to proceed through the full two-stage Anns/Cooper framework. Over the years, courts in Canada have developed a body of negligence law recognizing categories of cases in which a duty of care has previously been established (Cooper, at para. 41; Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 15; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 5). In such cases, “the requisite close and direct relationship is shown” and the first stage of the Anns/Cooper framework will be complete, as long as the risk of injury was reasonably foreseeable (Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 26). The second stage of the Anns/Cooper test will rarely be necessary because residual policy concerns will have already been taken into account when the duty was first established (Cooper, at paras. 36 and 39; Livent, at paras. 26 and 28; see also Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, at paras. 9-10).
(2) How the Just Category Operates
[20] This Court’s majority decision in Just established a duty of care. The plaintiff sought damages for personal injury suffered when a boulder fell from a slope above a public highway onto his car. He claimed that the defendant government owed a private law duty of care to properly maintain and inspect the highway and that his loss was caused by the government’s negligent failure to do so.
[21] Just provided this Court with an opportunity to apply the full two-stage duty of care framework to a case involving personal injury on a public road. At the prima facie stage, the Court held that users of a highway are in a sufficiently proximate relationship to the province because in creating public highways, the province creates a physical risk to which road users are invited. The province or department in charge can also readily foresee a risk to road users if highways are not reasonably maintained (p. 1236).
[22] At the second stage, the Court in Just did not have residual policy concerns about indeterminate liability or the effect of recognizing a duty on other legal obligations. The Court found that the duty of care should apply to public authority defendants “unless there is a valid basis for its exclusion” (Just, at p. 1242). The Court referred to two such bases: first, statutory provisions that exempt the defendant from liability, and second, immunity for “true” policy decisions (pp. 1240-44). While such policy decisions are exempt from claims in negligence, the operational implementation of policy may be subject to the duty of care in negligence.
[23] The Court thus determined that public authorities owe road users a duty to keep roads reasonably safe, but recognized that the duty was subject to a public authority’s immunity for true policy decisions. On the facts of Just, the impugned system of inspection was operational in nature, meaning it could be reviewed by a court to determine whether the government breached the standard of care (pp. 1245-46). The Court’s reasoning is worth quoting at length:
Here what was challenged was the manner in which the inspections were carried out, their frequency or infrequency and how and when trees above the rock cut should have been inspected, and the manner in which the cutting and scaling operations should have been carried out. In short, the public authority had settled on a plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described [in Sutherland Shire Council v. Heyman (1985), 157 C.L.R. 424 (H.C.), at p. 469] as “the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness”. They were not decisions that could be designated as policy decisions. Rather they were manifestations of the implementation of the policy decision to inspect and were operational in nature. As such, they were subject to review by the Court to determine whether the respondent had been negligent or had satisfied the appropriate standard of care.
[24] As we shall explain, the principles and considerations set out by the Court in Just to assist in distinguishing between policy and operation are relevant to any case in which a public authority is alleged to have been negligent, whether it falls under an established or analogous duty of care or a novel duty of care. The Court recognized the continuing judicial struggle to differentiate policy from operation, but nonetheless understood the necessity of ascertaining when public authorities owe duties in negligence.
[25] The Just category of duty of care is firmly established in Canadian law. Over a decade later in Cooper, when this Court gave examples of categories in which proximity had previously been recognized, it specifically observed: “. . . governmental authorities who have undertaken a policy of road maintenance have been held to owe a duty of care to execute the maintenance in a non-negligent manner” (para. 36, citing Just, and Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445).
[26] The case at bar raises the issue of how the decision in Just applies to Ms. Marchi’s claim. Below, we explain why this case fits within the duty of care previously recognized by this Court in Just.
[27] To determine whether a previously established category of duty applies, “a court should be attentive to the particular factors which justified recognizing that prior category in order to determine whether the relationship at issue is, in fact, truly the same as or analogous to that which was previously recognized” (Livent, at para. 28). In Just, the Court’s finding of proximity was based on various factors, including the nature of the loss (personal injury) and the fact that the injury occurred on a highway to which the public was invited. Users of the highway could expect that it would be reasonably maintained and there was a reasonably foreseeable risk that harm might befall highway users if it was not.
[28] A substantial number of cases have applied the Just category, including decisions of this Court. In Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420, the plaintiff’s car accident occurred on a sheet of black ice on the road. The Court held that the duty of care to reasonably maintain roads from Just “would extend to the prevention of injury to users of the road by icy conditions” (Brown, at p. 439). Similarly, in Swinamer, a large tree fell on the plaintiff’s truck while he was driving, causing serious injuries. The Court held that the duty of care from Just to reasonably maintain roads clearly applied (pp. 457-59). In both cases, however, the Court went on to find that the decisions at issue were core policy decisions immune from negligence liability. Lower courts have also applied Just where a pedestrian alleges that they suffered personal injury because a public authority failed to maintain a public road, sidewalk, or path in a reasonably safe condition (e.g., Tambeau v. Vancouver (City), 2001 BCSC 651, 20 M.P.L.R. (3d) 195; Talarico v. Northern Rockies (Regional District), 2008 BCSC 861, 47 M.P.L.R. (4th) 242, at paras. 57-58; Bowden v. Withrow’s Pharmacy Halifax (1999) Ltd., 2008 NSSC 252, 48 M.P.L.R. (4th) 250, at para. 113; Lichy v. City of Surrey, 2016 BCPC 55).
[29] As demonstrated by Just and subsequent jurisprudence, the factors uniting cases under the Just category are as follows: a public authority has undertaken to maintain a public road or sidewalk to which the public is invited, and the plaintiff alleges they suffered personal injury as a result of the public authority’s failure to maintain the road or sidewalk in a reasonably safe condition. Where these factors are present, the Just category will apply, obviating the need to establish proximity afresh.
[30] In this case, the plaintiff suffered significant physical injury on a municipal street in the City’s downtown core. By plowing the parking spaces on Baker Street, the City invited members of the public to use them to access businesses along the street. The plaintiff was attempting to do just that when she fell into a snowbank that had been created by the City during snow removal. The Just category covers a variety of situations, including the prevention of injuries from rocks falling onto the road (Just), the prevention of injuries from trees falling onto the road (Swinamer), and the prevention of injuries from black ice on the road (Brown). It also clearly extends to the prevention of injuries from snowbanks created by a government defendant on the road and sidewalk. In our view, Ms. Marchi has proved that her circumstances fall within the scope of the Just category. As discussed below, it remains open to the City to prove that the relevant government decision was a core policy decision immune from liability in negligence.
[31] We are also of the view that the relationship between the plaintiff and defendant is sufficiently close to satisfy a novel proximity analysis. This case involves foreseeable physical harm to the plaintiff and therefore engages one of the core interests protected by the law of negligence (Cooper, at para. 36). Other hallmarks of proximity are also evident: road users are physically present on a space controlled by the public authority; they are invited to the risk by the public authority; and the public authority intends and plans for people to use its roads and sidewalks. It would be reasonably foreseeable to the City that carrying out snow removal in a negligent manner could cause harm to those invited to use the streets and sidewalks in the downtown core.
[32] We note that the City suggested in oral argument that its duty of care is grounded in the Occupiers Liability Act, R.S.B.C. 1996, c. 337. The Act does not apply to a “public road” or “public highway” occupied by a municipality (s. 8(2)). We heard no submissions on whether Ms. Marchi’s fall occurred on a public road or highway as those terms are defined in the Act. The trial judge noted that it makes no practical difference in this case whether the Act applies, and for the purposes of these reasons, we assume it does not. Both parties agreed that core policy immunity must be addressed in any event.
[33] Finally, some confusion arose in oral argument about where to consider core policy immunity in the duty of care analysis when a previously established category applies. In novel duty of care cases, this Court has conceived of core policy immunity as a stage two residual policy consideration, as was done in Imperial Tobacco and Cooper. Where an established duty of care applies, on the other hand, this Court has stated that a full two-stage Anns/Cooper analysis is generally unnecessary (Cooper, at para. 39). Thus, where the Just category applies, there is no need to repeat the full two-stage analysis already done in Just.
[34] Nonetheless, the decision in Just did not decide for all future purposes when an impugned government decision with respect to road maintenance is core policy. The core policy analysis in one case will not necessarily apply to other cases because the factual nature of a decision will likely vary from case to case. While other stage two concerns, like indeterminate liability, need not be