39715 S.W.B.M. v. C.S.M. SK Charter of Rights — Right to security of the person and to be free from cruel and unusual punishment

Nelson (City) v. Marchi, 2021 SCC 41– Torts — Negligence — Duty of care

On appeal from a judgment of the British Columbia Court of Appeal (2020 BCCA 1) setting aside a decision of McEwan J. (2019 BCSC 308).

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 (7-0): 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 enduring 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.

Reasons for judgment: Karakatsanis and Martin JJ. (Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ. concurring)

Neutral Citation: 2021 SCC 41

Docket Number: 39108


Allan Rajmoolie v. Her Majesty the Queen(Ont.)

Criminal law — Sentencing

Mr. Rajmoolie pleaded guilty to firearms offences. At his sentencing hearing, he sought credit for time served and additional credit for the harsh conditions experienced while incarcerated in Toronto East Detention Centre. Mr. Rajmoolie was sentenced to four years less credit for time served with no enhanced credit for the conditions of his pre‑sentence detention. The Court of Appeal dismissed his appeal.


S.W.B.M. v. C.S.M.(Sask.)

Charter of Rights — Right to security of the person and to be free from cruel and unusual punishment

The applicant mother and the respondent father began residing together in 2001, married, and then separated in 2011. They have four children. The father remained living in the matrimonial home while the mother relocated with the children. At first, the children spent most weekends with the father, but his parenting time was later reduced to every other weekend. Over the ensuing years, the mother began to withhold access periods from the father and refused to encourage the children to comply with access agreements and orders. By the time of the trial judgment, the father had almost no relationship with any of them. The sole issue at trial in 2019 involved parenting issues. The trial judge awarded the father sole custody of the children with no parenting time for the mother unless she satisfied certain conditions. This decision was upheld on appeal.


Georgette Fleischer v. Tribunal des professions, Louis Brousseau, Catherine Ouimet and Guy Bilodeau(Que.)

Administrative law Natural justice Law of professions

The application for leave to appeal involves malpractice allegations launched against a lawyer who represented the applicant, Ms. Fleischer, at trial in the context of litigation involving her late father’s estate. Ms. Fleischer was sued by her lawyer for unpaid fees following the trial, and she responded by lodging complaints initially before the Syndic du Barreau du Québec, and then to the Disciplinary Council of the Barreau du Québec, alleging that her representation fell below the applicable ethical standards. The Disciplinary Council of the Barreau du Québec acquitted Ms. Fleischer’s lawyer of the offences alleged in her complaint. The Professions Tribunal dismissed Ms. Fleischer’s appeal on a summary basis, having determined that her prospective appeal stood no reasonable chance of success. Ms. Fleischer’s application for judicial review was dismissed by the Superior Court, and the Court of Appeal denied her application for leave to appeal.


N.B.M. v. Her Majesty the Queen(Alta.)

Criminal law — Evidence

The applicant was convicted of confinement, sexual interference, incest and sexual assault causing bodily harm of his young daughter. The applicant’s conviction appeal was dismissed.


Tri-C Management Limited, Justamere Café Limited, Pleasant Valley Nurseries Limited, Down to Earth Art Gallery Inc., Dream Catcher's Deli & Treats Limited v. Attorney General of Nova Scotia, Nova Scotia Utility and Review Board(N.S.)

Expropriation — Injurious affection — Torts

Highway 104 in Nova Scotia used to pass through the Town of Antigonish. The Province of Nova Scotia constructed a by‑pass diverting highway traffic around Antigonish. The by‑passed portion of highway became a trunk highway. Five businesses commenced claims for injurious affection. The Nova Scotia Utility and Review Board dismissed the claims. The Court of Appeal dismissed appeals and a cross‑appeal.


Volodymyr Hrabovskyy v. Attorney General of Canada and Attorney General of Québec(Que.)

Civil procedure — Abuse of process — Pensions

The applicant, Mr. Hrabovskyy, is a Canadian citizen residing in the Province of Quebec who worked in a laboratory in Norway as part of his Master’s program in chemistry. In that context, he developed a long‑term illness due to the inhalation of diethyl. He claimed before the Norwegian authorities for pension and disability benefits, but relief was refused under the applicable legislative regimes. He then sought various orders against the respondent attorneys general in Quebec for similar compensation, alleging participation by them in a fraud perpetrated by the Norwegian authorities in the handling of his claim. The respondent attorneys general successfully moved to dismiss Mr. Hrabovskyy’s claim for abuse of procedure. The Court of Appeal dismissed Mr. Hrabovskyy’s application for leave to appeal, having found no error in the judgment of first instance or a question going beyond the interests of the immediate parties.